Study On Tort Damages Of Wrongful Birth

Wrongful birth refers to a prenatal check-up in a medical institution during pregnancy.The doctor did not detect the birth defect of the fetus due to negligence or did not inform the relevant situation.As a result,the pregnant woman failed to choose to terminate the pregnancy in time and eventually gave birth to the defective baby.Such cases were first seen in the United States.In recent years,a large number of cases of wrongful birth have emerged in China.This new type of case has strong legal and ethical controversy,so the resolution of such cases needs to be explained by legal doctrine and the reveal of legal policies.This article first defines the concept of wrongful birth and makes a necessary distinction from wrongful life and wrongful pregnancy.Then search the cases of wrongful birth in recent years,sorted out the main points of the judgment,and found out the problems in judicial practice.That is,whether the wrongful birth meets the constituent elements of tort liability,and if so,what is the scope of compensation.And this article focuses on the problems in practice.On the establishment of compensation for infringement by wrongful birth,this article examines the constituent elements of tort liability one by one through the discussion of damage,causality,and fault.It is the interests of parents who choose to have children that are violated in the wrongful birth.It is not right of independent decision on childbearing,the right to be informed,the right of personal liberty,and the right to proper antenatal care.The aggravating behaviors of medical institutions are manifested in that defects such as fetal diseases or malformations should be discovered but not found,fetal defects found but not notified,and fetal defects may be discovered but not notified,and there is a causal relationship with the violation of parent benefit.The fault of a medical institution is negligence,and objective standards should be adopted to determine the negligence.If a qualified medical staff cannot diligently detect the defects of the fetus,the doctor is faultless,otherwise it is fault.Therefore,it should affirm the right to claim damages for wrongful birth.With regard to the scope of compensation for wrongful birth,this article believes that the following requests of the plaintiff should be affirmed: except for the cost of prenatal examination and prenatal diagnosis,the rest are based on medical negligence,which will be supported after medical negligence,and will not be supported before;special support cost,including medical and nursing expenses for the child;mental damages.Disability compensation,death compensation and general maintenance should not be supported.In addition,this article considers the issue of limitation of damages in wrongful birth.In the application of benefit offsetting,because the termination of pregnancy operation was avoided and the cost was saved,it should be deducted from the defendant's compensation.But the rule of benefit offsetting does not apply to compensation for mental damage.If the plaintiff has negligently concealed the facts and failed to cooperate with the inspection,the liability of the medical institution should be appropriately reduced.In terms of exemption,if the defect of the fetus cannot be detected at the current medical level,the defendant shall not bear responsibility.