Damages On Wrongful Birth In China

Wrongful birth claim refers to the lawsuit which brought by the pregnant woman who fails to terminate the pregnancy because of her doctor’s negligent conduct during the antenatal and prenatal diagnostic procedures, resulting in her giving birth to a defective baby. It was first seen in the United States in the 1960 s, and then spreaded all over the world, arousing a huge controversy in politics, ethics and law. Dealing well with this new type of case depends both on revealing the policy behind the cases and explaining the tort law doctrinally.This thesis consists of three parts, including introduction, body and conclusion. The body can be divided into the following three parts:Chapter 1 discusses whether we should accept the wrongful birth. Firstly, This thesis tries its best to define the concept of wrongful birth, comparing it with the concept of wrongful life, wrongful abortion and wrongful pregnancy. Whether the victim can be remedied through tort law lies in the public considerations behind the wrongful birth accepts by the lawyers. Through a comparative viewpoint, this thesis introduces the related experience in dealing with such litigation of the United States, France and Germany, combining with some Chinese courts’ judicial practice. At last, it concludes that the wrongful birth lawsuit, which is one of the medical torts, should be recognized in China because it is committed to enhancing the dignity of disable lifes, helps to improve the quality of prenatal health care medical institutions, and helps to implement the policy of eugenics.Chapter 2 of this thesis tries to demonstrate that the doctor should be liable to compensate for the damage of the plaintiff according to Chinese law because of his negligence. The injury in a wrongful birth claim is an injury to the pregnant woman, which is the loss of an opportunity to choose whether to terminate the pregnancy or not. It is different from the so-called abortion self-determination owned by the pregnant women. In short, the pregnant women can bring the suit against her doctor based on Paragraph 1, article 6 or article 54 of the tort law.Chapter 3 tries to ascertain the scope of the plaintiff’s damages, and concludes that the court should support the plaintiff’s claims of obtaining the health care costs, the special support payments and prospective losses, but deny the plaintiff’s claims of obtaining the general proposition of support payments, funeral expenses and mental damages. Taking into account the balance between freedom of act and the damage compensation, this part also discusses the possibility of applying the benefit offsetting and damages cap in the wrongful birth claims. On the application of the benefit offsetting, this part considers that the plaintiff’s unpaid abortion cost can be deduct in the medical costs, but the joy of raising a child, the physician liability insurance and social assistance payments can’t be deduct. In addition, this part concludes that the damages gap can’t be applied in the wrongful birth claim at this present stage in China.