Liability For Breach Of Contract Caused By Defective Births Due To Negligence In Prenatal Examination

With the development of technology of prenatal care and the enhancement of the concept of prenatal and postnatal,the prenatal examination rate is increasing.Due to the fault of the medical provider during the prenatal examination,the fetal defect cannot be detected,has caused the pregnant woman to lose the opportunity to terminate the pregnancy.Therefore,there has been a new type of civil dispute in the " prenatal examination negligence lawsuit".Birth defects bring huge economic burden and mental pain to the deficient children and their families,and also seriously affect the children's survival and quality of life.The relief of the damage caused by the negligence in the prenatal examination in our country has two remedies for liability for breach of contract based on the Contract Law and for liability for tort liability based on the Tort Liability Law.In the choice of tort liability and liability for breach of contract,most scholars advocate that the former is superior to the latter,on the grounds that the latter has limitations on the scope of the claimant and the scope of damages.The party's desire to obtain tort law relief must be based on the existence of the right to claim for infringement damages,and the existence of this claim basis depends on whether the tort law provides protection against the damage suffered by the parties in the case of negligence.Regarding the infringing object of wrong birth,there are opinions such as the right to freedom of abortion,the right to informed consent,the right to physical health,the other interests of personality and property,and the theory of pure economic loss.However,the basic rights that were infringed in the lawsuit for negligence in production were not found in the current system of tort law in China.When pregnant women go to the hospital for prenatal examination,the two sides form a “prenatal examination contract”,and the contract is valid without any dispute.Therefore,there are certain theoretical obstacles in the application of the infringement route in China's domestically detected negligence lawsuits,and damages should be filed in accordance with the breach of contract.The court shall apply the “medical service contract dispute” case to deal with such cases.The prenatal examination contract is an unnamed contract.In nature,it is most similar to a applicable commission contract.It should refer to the provisions of the applicable commission contract.The commission contract is subject to the principle of fault liability,so the responsibility for negligence is also based on fault.The purpose of pregnant women undergoing prenatal examination is to understand the development of the fetus,to avoid birth defects,and to avoid the economic burden and mental stress.The statutory obligations of the medical provider in the prenatal examination contract are mainly stipulated in the Maternal and Infant Health Care Law,which directly becomes part of the prenatal examination contract and is a supplement to the agreed obligations.When a medical provider violates the contractual obligations,it shall bear the corresponding liability for breach of contract.The form of liability for breach of contract is to compensate for the loss.In combination with the nature of the contract,the specific elements of the liability include breach of contract,damage facts,causality,and fault.When the constituent elements are met,the medical provider shall be liable for breach of contract.After the child is born,the mother can naturally file a lawsuit with the medical provider as a contractual party.Since raising a child is a legal obligation of the parent,and according to the provisions of the Maternal and Infant Health Care Act,the husband and wife may directly point to the husband and wife w ho are directly obligated by the medical provider in the prenatal examination,so the father may rely on the “contract with the protection of the third party's interests”.The principle of direct access to the right to claim on the contract law.The negligence lawsuit filed by the defective as the plaintiff is called the “wrong life complaint”,and the defective child must be compensated for the damage.However,if there is no medical provider's negligence,the pregnant woman will choose to terminate the pregnancy.It is impossible to be born.In such a lawsuit,if the defect proves that it has suffered damage,it must prove that its existence is worse than the absence.Legal ethics cannot support the idea that “no birth is better than health defects”,and cannot underestimate the value of life due to health defects,so it cannot be proved that the damage is established.Therefore,the wrong life complaint is not justified,and the subject of the claim can only be the parent of the defective child.Whether it is a tort law or a contract law,the purpose of providing relief is to make the victim in a position where the infringement or breach of contract does not occur.From the purpose of the parties to establish a prenatal examination contract,the original intention of pregnant women to receive prenatal examination is nothing more than the concept of prenatal and postnatal care or economic considerations.The purpose of the antenatal check contract is to prevent the birth of the defective child.The maintenance cost of the defective child,including the general support cost and the special support cost,should be within the protection scope of the prenatal examination contract.Considering the principle of private law autonomy and the legal effect,the scope of compensation for contract law should be limited by the “predictability rules”,and it is not appropriate to include mental damage in the scope of compensation.