On Liability For Damages Caused By Wrongful Birth

Wrongful birth is a type of case that has developed across the fields of tort law and contract law after the technological progress of prenatal examination.There is a strong positive correlation between improper birth cases and prenatal testing technology,socio-economic development and citizens' conception of fertility.At present,our country is in a critical period of social and economic transformation.Citizens' conception of fertility has changed from extensive conception of slash-and-burn cultivation to intensive cultivation,which emphasizes the quality of children's upbringing.The progress of science and technology,the rapid development of economy and the improvement of legal system in China have jointly promoted citizens to have more motivation to use the law to safeguard their rights and interests.To sum up,the number of cases of improper birth in China will increase or at least maintain the current number in the future.On the basis of sorting out and summarizing the elements of the liability for breach of contract damages and tort damages caused by improper birth,the article points out that the controversy focus of the current academic circles and judicial practice teams on the liability for compensation for improper birth damages is whether the congenitally defective child can become the subject of litigation,what kind of rights and interests the victim's civil rights infringed in improper birth cases are and the scope of compensation for improper birth damages.?Facing the above controversial focus,China should apply tort litigation and breach of contract litigation concurrently to solve the problem of improper birth damage compensation liability.In such cases,congenital defective children should not be the subject of litigation,their parents are the eligible subject of litigation.The infringement of parents' civil rights and interests is the right to physical health and the right to eugenic and eugenic childbearing.As a result,property losses such as special expenses and medical expenses have been caused,and serious mental suffering has been suffered.These damages should be compensated by medical institutions.