Analysis Of The Liability For Damages Caused By Wrong Births

With the development of science and technology and the changes of the social ethics,fetal abnormalities related disputes and litigation in our country is obviously rising trend,reference to foreign judicial practice such cases are called Wrongful Birth.Wrongful Birth as a result of prenatal diagnosis negligence causing birth defects is the dispute of a new type of cases.Our country existing law does not have clear rules for such case,the court for such cases is relatively chaos,main show is that the referee base is fuzzy,on the basis of the right of claim of right subject is differ,the compensation scope is not unified.This paper analyzes the typical cases of the four referees in practice,putting forward the basis for the claim of the litigation,the subject and the scope of compensation,in order to provide help to handle such cases,to achieve the judicial effect of the same case.The first part analyzes three typical cases,and points out that the judicial practice of our country has different opinions on the recognition of tort liability,breach of contract responsibility,denial of the existence of hospital responsibility.The second part compares the concept of Wrongful life,Wrongful pregnancy and medical malpractice,and further clarifies the concept of wrong birth and legal nature,which will help to analyze the basis of claim right and the main body of claim.The third part of the specific analysis of the rightto claim the subject and the scope of damages.In the basis of the right to claim,the wrong civil liability constitutes a breach of contract and tort liability.In the case of the determination of the breach of contract,the medical service contract may be dealt with in accordance with the entrusted contract with compensation;In the infringement of the liability of the damage,the infringement of the defective parents tort law on the "other personal and property rights";Finally,it is pointed out that infringement litigation can protect the interests of the parties?In the case of the wrongful birth claim,the parents of the defective children have the right to claim the subject in the case of default and infringement.The defective father is entitled to the subject only in the infringement litigation according to the principle of contract relativity.Behavior is not the cause of the baby defects,and the infringing occurs,the defect does not have the civil subject qualification,so the defect can not be the subject of the right to claim the wrongful birth cases;in the scope of the wrongful birth damage compensation,Medical expenses,disability care,special education,disability appliances,follow-up treatment costs,etc.,these are due to the birth of the defective parents bring property rights and interests of the loss,are compensable range;for compensation for disability compensation and death compensation,which is part of the loss of compensation for labor income,and the lossof parents in the wrongful birth cases,does not belong to the scope of compensation;for general support,whether the child is healthy or defective,parents should bear this part of the cost should not be included in the scope of compensation;on the spirit of injury compensation,the wrongful birth of the parents against the health of the expected interest in the birth of the child,the interests of personal properties,parents due to the birth of a child suffering from mental illness,compensation for mental loss.The fourth part is to summarize the civil liability of the wrong case of the inspiration,it is recommended in the contract law and tort liability law to join the relevant provisions,and respect for patients with informed consent.