Study On Civil Relief For "Wrongful Birth"

In recent years,litigation cases concerning wrong births have been common in China,and the trend is continuing to increase.Because the current law does not clearly stipulate this,the judgment results of different courts are different,and there are still many disputes about such issues in academia.Therefore,research on wrong birth cases can play a certain role in regulating such cases in judicial practice.At the time of wrong birth,whether the academic and practical circles recognize that the legal policies and regulations involved are the key issues for whether parents of disabled children can receive civil law relief.The “wrong birth” action complies with the provisions of the Tort Law,the Maternal and Infant Health Care Law and other laws on parental reproductive choice(informed choice)under the law interpretation.In addition,the relief will not damage the dignity of the disabled life,but also help to improve the quality of prenatal medical and health services in medical institutions.Therefore,there is nothing wrong with the affirmation of the plaintiff's claim for damages.At present,the civil remedies for wrong births in judicial practice mainly include two kinds of remedies for breach of contract and remedies for infringement.In judicial practice,many methods of competition and cooperation are adopted.The premise and basis of the relief for breach of contract is the existence of a medical service contract.The hospital's breach of contract caused additional financial losses for parents with children who were deficient in their care,which is its true cause and effect.In addition,when considering its constituent elements,there is no need to consider the element of fault.In order to test whether the infringement can be remedy,the four infringement damages of negligence,damage,fault and causality should be checked one by one.It is believed that the negligent behavior of medical personnel or medical institutions is an infringement of the parental right to choose a child.There is a double causal relationship between fact and law.The right of pregnant women to choose to have children is essentially a personality interest.This kind of benefit,because it is clearly recognized in the Maternal and Child Health Care Law and the relevant substantive law,and complies with the provisions of other personal rights as provided in Article 2(2)of the Tort Law under the interpretation of the law,it can enter into tort The system of liability law takes Article 55 of the Tort Liability Law asthe basis for specific claims.There is no doubt that the mother is both the subject of breach of contract and the right to claim for tort.The father has no medical service contract relationship with the hospital,so he can only remedy his rights through tort.In addition,no matter whether the relief path of breach of contract or infringement is taken,the defective child does not have the right to request.In the scope of compensation for wrongful birth damages,first of all,it should be noted that the expenses should exclude the normal expenses of the parents,and the calculated time point is the start of the first medical negligence.Secondly,it should affirm the medical expenses,special maintenance and mental damages claimed by the plaintiff.Among them,the plaintiff 's abortion cost is a negative increase in property,and the medical expenses can be deducted by applying profit and loss offset.It denies the general maintenance and disability compensation it claims.Because the right to choose childbearing belongs to personal rights and interests,and the mental suffering of parents reaches "severe" level,compensation for mental damage is justified.