The Relief Paths Of Damage Compensation Of Wrongful Birth

The progress of prenatal diagnosis and treatment technology,as well as the legal recognition to abortion trigger the damage compensation disputes of wrongful birth.Wrongful birth,involves ethics,sociology,tort law and contract law,is faced with highly hot disputes.In the first part,both theoretical problems and practical problems in wrongful birth will be introduced.Firstly,our country's judicial practices mostly focus on sharing loss and easing the doctor-patient contradiction,which cause the ignorance of responsibility determination.Secondly,although in our country,both liability for breach of contract and liability for tort can provide the relief of compensation damage in wrongful birth,most attentions are put on tort liability.Scholars and judges ignore the value of contract responsibility.The imbalance among these two ways of compensation cause the either excessive or inadequate compensation,which should be discussed and addressed.In the second part,the definition and scope of wrongful birth will be discussed.For a long history of implementation of family planning policy,the meaning of reproductive freedom in our country is distorted and there is no legal imitation on freedom of abortion.However,there is no deny on the importance of protecting the fetus's rights to life.Thus,necessary restriction must be put on the freedom of abortion.The third part focuses on the theoretical obstacles faced by the application of tort liability.The object of infringement is the freedom of determination on fertility or not,it can be protected on the basis of tort law,article 2.Besides,the corresponding obligations as stipulated in the law are the premises of protection of this freedom.In our country,the legal obligations are listed in Mother and Infant Health Law of the People's Republic of China,which should be regarded as the prerequisite of legal protection.In the fourth part,the value of responsibility for breach of contract is highlighted.The contract of antenatal examination is signed between medical establishments and patients.Thus,there is a common foundation for the application of responsibility for breach of contract.Besides,the responsibility for breach of contract is tightly associated with the default behavior,but not the object of rights.Obviously,there is a more immediate code in contract responsibility,compared with tort responsibility.And,that is the reason why the importance should be attached to the responsibility for breach of contract in wrongful birth.In the last part,the application of damage compensation will be discussed.Aftergetting rid of the obstacles on theory encountered by tort responsibility and manifesting the importance of contract liability in the wrongful birth,how to judge the compensation and its scope should be decided.This problem involves the compensation for the main body,the calculation of compensation and the confirmation of responsibility.