On Claims For Damages Of Wrongful Birth In Tort Law

Improper birth means that when pregnant woman is on prenatal examination and prenatal diagnosis at the hospital,the doctor did not fulfill the duty of care and made medical mistakes which led to the fetus with birth defects has not been detected,or it has been detected but not informed the parents,so that the pregnant parents did not choose to terminate the pregnancy in time,and finally the disabled newborn was born.The United States was the first to discover related cases and later spread around the world.This case is not only ethically and politically controversial,but also the legal controversy is extremely fierce.Of course,to solve this new type of case requires adjustments in the policy of the law,and it is even more urgent to explain the legal teachings.The thesis aims to introduce the jade,firstly clarifies the meaning of improper birth and improper birth infringement,and to compare and distinguish the concept of improper birth and improper life,improper pregnancy,and then systematically analyze the legal dilemma of improper birth infringement damages.One is the inclusiveness and ambiguity of the general provisions of tort law,which makes it unclear whether the improper birth is specifically infringing or infringing on the right;secondly,although the theoretical circles are very rich in the theory of causality judgment,but in terms of specific legal provisions,the determination of the causal relationship between the physician's negligent infringement and the pregnant parent's damaging consequences is unacceptable;the third is the limitation of the tort law's scope of damages when determining the applicable tort law to regulate improper births results in certain limitations on determination of the scope of improper birth damages.Strictly speaking,the investigation of improper liability for birth damage is the implementation of the liability for medical damage in the tort law.The implementation of this responsibility has greatly enhanced the life dignity of disabled newborns,and has also spurred the hospital's prenatal care and other medical quality to be significantly improved.The national eugenics and prenatal education policy has been implemented,and the rights and interests of parents of disabled newborns have been effectively maintained.The claim for compensation for infringement damages of disabled newborn parents should be supported,which in line with the public interest and fairness and justice of the society.In the field of comparative research on improper birth damage compensation,the thesis conducted in-depth investigations on countries with deep theoretical research and judicial practice in the United States,Germany,and France,and finally summarized our experience on the basis of the experience of the three countries.Judicial practice makes a simple review and reflection,and strengthens the theoretical community's understanding of this lawsuit.Whether the improper birth damage compensation can be supported depends mainly on whether the academic and substantive departments can unanimously agree with the relevant laws and policies.In the aspect of clarifying the problem of damages caused by improper birth infringement,the thesis examines the causal relationship between the negligent behavior of the hospital and the damage of improper birth,and discusses the constituent elements of the claim for infringement damage compensation one by one,thus further determines hospitals and physicians have negligent infringements that violate the right of pregnant women to choose abortion freely.Moreover,there is not only a causal relationship between the faulty behavior of the doctor and the harm of the pregnant parent,but also a causal relationship in the scope of responsibility.Therefore,from the perspective of legal doctrine,the pregnant parents are entitled to claim for infringement damages and are not accessible.In terms of the scope and limitation of improper damages for claims in tort law,the thesis expresses affirmative opinions on the extra work costs,medical expenses,moral damages and special maintenance expenses incurred due to improper birth.For daily life consumption,education and other general support maintenance fees,the thesis is not recognized.Considering that the legislative purpose of the Tort Liability Law is to fill in the damage and take into account the freedom of conduct,it is necessary to discuss whether the improper birth case applies the principle of offsetting profit and loss and the compensation limit rule.As far as the principle of profit and loss is applied,the cost of abortion for pregnant women should be deducted,but the spiritual happiness and social assistance for raising children cannot be deducted.As far as the compensation limit rules are concerned,since most of the hospitals in China are still public hospitals that are not for profit,the existing regulations provide relatively less compensation for victims.Therefore,the legislation on compensation limits is a precaution,which is not advisable at this stage.If the amount of compensation in the case is indeed too large,the judicial department may appropriately reduce the liability for tort damages of the hospital according to various factors such as the principle of fairness.