The Research On The Tort Compensation Of Wrongful Birth

The concept of wrongful birth originated in the United States,and its concept is divided into broad and narrow sense.This dissertation demonstrates that the concept of wrongful birth in the narrow sense,it means that in the prenatal care,the doctor negligently provided the wrong results or medical advice to the pregnant woman,so that the pregnant women failed to know that the fetus was defective.As a result,the parents chose to continue the pregnancy based on their trust in the doctor,but they gave birth to a defective baby.Based on that,the parents usually sue the medical institutions for its mistake and claim for compensation,resulting in assumpsit for wrongful birth.With the development of antenatal health care technology and the improvement of medical level,the concept of eugenics and fertility has been deeply rooted in the hearts of the people,and antenatal health care has reached a high degree of popularization.As a result,in the past ten years,the number of wrongful birth case in China has also shown an upward trend.However,the specific results of judicial judgments made by the courts are different,and there are also different opinions on some specific controversial issues.The first part of this dissertation is a basic overview of wrongful birth.Firstly,it briefly introduces the concept and the tort elements of wrongful birth,and then uses case analysis method to extract the controversial issues in the case of wrongful birth,that are the object of the tort,the damage and the subject of the right,the scope and standards of the compensation.These four controversial issues are the basis of this dissertation.In the second part,it focuses on the object of the tort in wrongful birth.At present,the mainstream opinions on this issue in academic circles are "reproductive autonomy","the right of reproductive choice","body and health right","the right of personal liberty" and "personality interest".However,there are some problems in these opinions,therefore,the infringed right in wrongful birth is the informed consent right of parents.The third part focuses on the damage in wrongful birth.Some viewpoints hold that the damage is the birth of defective infants,and others hold that the defect of infants.Both are identified from the defective infants,but the right of parents is infringed in wrongful birth,the damage should be identified from the parents.It is concluded that the damage should be caused by infringing upon the right of parents.The fourth part discusses the subject of compensation right in wrongful birth.The subject of the right is the parents,and the defective infant is not qualified as a subject of action in wrongful birth.The last part is to determine the scope of the compensation,including property compensation and moral damage compensation.The court should pay attention to the special factors of the case while referring to the results of judicial expertise in determining the compensation standard.In this case,it can not only protect the legal rights and interests of parents but also avoid aggravating the liability of medical institutions for compensation,preventing the emergence of defensive medical practices.