Tort Damages For Wrongful Birth

“Wrongful Birth” is a concept originated from the United States.With the development of genetic testing technology,the recognition of abortion rights and the applicability of abortion procedures,wrongful birth suits caused by medical testing errors or misrepresentations are becoming more and more common.Wrongful birth suits are often brought by parents who claim that they would not have given birth to disabled children if the medical institution had not been negligent in making prenatal diagnoses.Therefore,the parents ask the medical institutions to compensate the corresponding loss.Whether the parents’ wrongful birth claim should be supported by court and the scope of compensation have been debated and discussed by scholars at home and abroad.There is room for discussion at the level of legal technology,legal policy and ethics.This paper discusses the compensation for wrongful birth from the perspectives of legal policy and legal technology.As far as legal policy is concerned,This paper opposes the practice of rejecting such suits on the basis of ethics.It is also argued that claiming damages for wrongful birth does not mean that the birth of a child is regarded as damage,nor does it detract from the value of life.But the overburden of compensation and defensive medicine are indeed social issues that should be considered.At the legal and technical level,for the injured parents,they can seek relief from the two ways: contract law and tort law,which constitute the liability concurrence.This paper only discusses the composition and scope of liability in the field of tort law.In the aspect of liability constitution,this paper examines the tort liability constitution of wrongful birth from three constitutive elements: medical negligence,infringement of rights and causality.This paper divides the medical negligence into the negligence of medical personnel and the negligence of medical institutions.The former is mainly manifested as lack of corresponding qualification,violation of prenatal diagnosis obligation,violation of notification obligation.The latter mainly refers to the organization and management negligence of medical institutions and the fault situation explicitly stipulated by law.The article holds that,the medical negligence violates the parents’ Eugenics informed choice in the wrongful birth suit.The nature of itis “general personality legal interest”.It belongs to the category of general personality right and should be protected by tort liability law.On the subject of rights and interests,the article affirms the independent subject status of the father,but denies the disabled children’s right to claim damages,that is,negates the wrongful life claim.Finally,this paper,after affirming the existence of “considerable causality”,tests it with “the theory of legal purpose”,and affirming the causality of the wrongful birth at the level of liability constitution.In terms of the scope of compensation,this paper discusses in five aspects: damage,causality in scope of responsibility,physical damages,mental damages,and the application of the profit and loss offsetting.First of all,it is clear that the damage is not the birth of the child itself,but the material cost and mental pain caused by the parents’ being deprived of Eugenics informed choice.In terms of physical damages,the paper,from the perspective of the concept of damage and the adequate causation,affirms the extraordinary expenses over and above the ordinary expenses of child rearing in wrongful birth suit.This is also a relatively consistent practice at home and abroad.For the general maintenance expenses,the article holds that the maintenance expenses and the maintenance obligation should be observed separately.The paper does not directly deny the general maintenance expenses from the ethical level,but excludes it from the perspective of the the legal technology and social policy.According to the paper,on the basis of the normal plan of the victim family,no matter the suit of wrongful birth happens or not,under normal circumstances,the general maintenance expenses will be paid.In addition,supporting the general maintenance expenses,is easy to cause overburdened compensation and other social problems.The paper affirms the compensation for mental damages,which also reflects the recognition and protection of the general personality right.Finally,the paper holds that it is necessary to comprehensively measure the applicable conditions of profit and loss offsetting and the corresponding normative purposes,in determining the application of profit and loss offsetting.