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Study On Tort Responsibility Of Wrongful Birth

Posted on:2020-05-13Degree:MasterType:Thesis
Country:ChinaCandidate:Y L ZhangFull Text:PDF
GTID:2416330590482363Subject:Science of Law
Abstract/Summary:PDF Full Text Request
Whether the defendant of the wrongful birth lawsuit establishes tort liability or not,which depends on the constitutive elements of tort liability.The fact of damage in the case of wrongful birth is not the birth of the defective fetus but the result that the pregnant woman lost the,opportunity to choose abortion and suffer the economic and spiritual injury caused by the negligence act of medical institutions.These institutions have invaded pregnant women' the right to know and prepotency.The tort liability law in our country protects civil rights.Prepotency in essence is one kind of personality right,which can be included into the protection object of the tort liability law through other personal rights stipulated in paragraph 2 of article 2 of the law.The causality in the wrongful birth case is that the negligence act of medical institutions leads to the loss of abortion opportunities for pregnant women,which brings damage to their property and spirit,which doesn't lies on whether there is causality between the negligence of the medical institution and the defect of defective children.Within the scope of wrongful birth tort compensation,the special maintenance such as medical expenses and care costs paid by parents of the defective fetus as well as mental damage compensation should be supported by the court and the denial of the general maintenance claims should be approved.One of the legislative purposes of the Tort Law is to judge the value of the actor's freedom and damage compensation.Therefore,it is necessary to rationally divide the responsibilities of both parties on the principle of loss and benefit and the principle of fault.Both parents have the qualification of the subject of claim,but defective children cannot be the subject of the claim,because they do not have the civil subject qualification in the wrongful birth case,and there are obstacles in causality and ethical policy.
Keywords/Search Tags:wrongful birth, tort liability, compensation of damage, subject of claim
PDF Full Text Request
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