A Study On The Liability Of "Wrongful Birth"

The phenomenon of “wrongful birth” was firstly applied to the legal field in America. It refers to the birth of a defect child under the condition that the medical institutions fail to diagnose the defects of the fetus due to their negligence or fail to inform the parents of the diagnosed defects during the antenatal care of the pregnant women. The proceeding filed by the parents of the defect child against the medical institutions refers to the proceeding of “wrongful birth”. In recent years, the incidence of such cases of “wrongful birth” was increasing in China; however, such cases mostly involve the principled contents of the laws which are insufficient in detailed regulations. In judicial practices, various courts give different results of judgment. Therefore, it is of theoretical value and practical significance to research the liabilities for tort of “wrongful birth”.The text of this paper is composed of four parts.The first part discusses the concept of “wrongful birth”. “Wrongful birth” refers to the birth of the defect child under the condition that the medical institutions fail to diagnose the defects of the fetus due to their negligence or fail to inform the parents of the diagnosed defects during the antenatal care of the pregnant women, so that the parents lose their options of bearing and rearing better children. Through comparison between “wrongful birth” and “wrongful life”, the main difference lies in the subject of litigation: the parents are the proper plaintiffs in the litigation of “wrongful birth” while the defect children are the proper plaintiffs in the litigation of “wrongful life”; through comparison between “wrongful birth” and “wrongful pregnancy”, the main difference lies in the health conditions of the children: the children involved in “wrongful birth” have the birth defects while those involved in “wrongful pregnancy” are healthy; through comparison between “wrongful birth” and “medical negligence”, they are different from each other mainly in the reasons for the defects of the children: the defects of the children involved in “wrongful birth” are geneogenous while those involved in medical negligence are caused by medical institutions. Through review on the foundation of the right to request remedy for the losses due to “wrongful birth”, it is more favorable for the plaintiff to file an infringement lawsuit due tothe differences in the subject of right to claim and the scope of damage compensation.The second part briefly analyzes the cases in America, Germany, France and Taiwan through comparative study. The standpoint that the parents act as the proper plaintiff and the special alimony has been supported in various regions; however, there are largely different opinions on the general alimony and the foundation of the requesting right: the countries adopting Anglo-American law system advocate the infringement as the foundation of the requesting right of this kind of cases while the countries (regions) adopting continental law system advocate the breach of contract as the foundation of the requesting right of this kind of cases; for the issue of general alimony, the appeal for the general alimony is supported in France but negated in the remaining countries and regions.The third part discusses the key components and defenses of the liability for tort of “wrongful birth”. The key components include: negligent medical treatment of medical institutions, fact of damage, causality between the negligent medical treatment and the fact of damage, and subjective fault of medical institutions. It is highlighted in this paper that the right of the parents to bear and rear better children is protected under the Law of Torts. To avoid expanding the responsibility of medical institutions in the cases of “wrongful birth”, some reasons for reductions or exemptions are set for the medical institutions, including the limitation of medical level, the agreement of the parents of the defect children and the negligence of the parents of the defect children.The fourth part discusses the subject and compensation scope of the liability for tort of such cases and defines the parents of the defect children as the subject on right of claim in such cases and the medical institutions as the subject of compensation. The compensation scope covers the special alimony and the compensation for mental injury.