Research On The Compensation For The Wrongful Birth Tort

Wrongful birth refers to a lawsuit in which the medical staff fails to provide the parents with the accurate physiological information of the fetus carried by the pregnant woman during the prenatal examination,resulting in the birth of the defective child,and the parents of the defective child claim damages from the medical institution.Wrongful birth is different from the general medical damage,which has many legal and ethical disputes.The theoretical and practical circles in China affirm the legitimacy of bringing such cases into the adjustment of tort liability law,but some scholars and courts deny the adjustment mode of tort liability law.Even though the courts holding a positive attitude towards the adjustment mode of tort liability law have obvious differences in the judgment results of such cases,the main differences in the judgment lie in that the rights and interests of wrongful birth infringement cannot be determined,the standards of negligence of medical personnel are different,and the scope of compensation for tort damages is not uniform.The theoretical scholars in China hold different views on the identification of rights and interests of wrongful birth infringement,the identification of medical personnel’s fault and the determination of the scope of damages compensation.From the perspective of comparative law,different countries or regions have different adjustment modes for such cases due to the influence of domestic or local legal norms,legal policies and religious beliefs.After discussing the basis of claim for damages for wrongful birth,the author can clearly draw the conclusion that there is a competition between the liability for breach of contract and the liability for tort on the basis of claim for damages for wrongful birth.However,from the perspective of protecting the parents of defective children,the choice of the remedy path of the law of tort liability for wrongful birth has certain advantages.The author through to the wrongful violations of the rights of birth theory to carry on the thorough analysis,demonstrates the wrongful infringes the defect child birth parents informed choice,the medical establishment to bear tort liability for defects children parents is to protect the child’s parents have informed choice,is theembodiment of the maintenance defects children life value,also accord with the requirement of fairness and justice.Secondly,the author starts with the principle of attribution of tort liability for wrongful birth,analyzes the four elements of tort liability,and clarifies the cause-and-effect relationship between the negligence of medical personnel in the process of prenatal examination and the damage caused by the parents of defective children.Finally,the scope of damages for wronged birth should include pregnancy and childbirth costs,general and special support payments,and mental compensation,not disability compensation.The damage compensation for wrongful birth shall be offset by the profit and loss of the miscarriage expenses that should have been paid,and shall not be offset by the spiritual benefits brought by the birth of the child and the rescue fund paid by the third party by the parents of the defective child.Moreover,the court should consider the participation of medical personnel in the fault,i.e.the force of the cause,when judging the compensation scope of the medical institution.In order to balance the interests between the family and medical institutions of the defective child,it is necessary to take the form of regular payment of damages for the wrongful birth infringement.