The Research On The Wrongful Life Claims In China

In the common law,the concept of wrongful life is used to refer to the damage actions which are brought from the babies against the doctors.It is the action resulting from the doctors' that they had not examined the congenital defects in babies or implemented their duty of informing because of their fault.The claim for the wrongful life birth is the right for the compensation for tort damages.The concepts of wrongful life and wrongful birth are similar,but they are different from each other in the right basis and the attitudes towards them substantially because of their different subjects.In consideration of our imperfect prenatal diagnosis skill and social insurance system,and the more protection of the baby rights in civil law,it is inevitable to support the wrongful life claim.The wrongful life originated in abroad,and there are ample researches and case studies overseas,which are meaningful from the comparative jurisprudence perspective.The difference in the bioethics,legal systems and the social insurance in every country has therefore resulted in the different judgements in every country's courts.In countries like America,France,Holland Israel and so on,the judges show the supporting attitude towards the wrongful life.Especially in the relative American cases,they have analyzed the basis for the wrongful life claims and then enabled the babies the petition right of wrongful.However,in the countries like England,German,and the Taiwan district,they have denied the wrongful life claims.However,their grounds for those judgements are untenable.Compared with the judicial status in China,there are many judgements of wrongful life claims in our country,and most of the courts have supported the claims of the baby.Because the research on the wrongful life claims are insufficient,and because the professional quality of judges is different from each other,there exist the deficiencies of not distinguishing the wrongful life action from wrongful birth action,not having a unified attitude towards the judgement of the children's statute of a subject and so on.With the increasing number of the wrongful life action,China needs theoretical grounds to be as a reference in the practice.Combined with the reasons in the supporting judgements,the wrongful life claim is actually the claim of the compensation for tort damages,which has its own constitutions,that is,the tortious action,the fact of injury,the causality and the fault.The doctors violated the rules of the Tort Liability Law,the Law of Mother and Infant Health and its implementation,the Technical Measures for Prenatal Diagnosis that specifies the duty of care and informing,and therefore caused the injury fact of baby's congenital defects,which has violated the baby's right to know their own health.After ascertaining the constitutions of the wrongful life claims,it is a necessity to confirm the legal effect of the wrongful life claims,that is,the damage's range and the damage's calculation method.Compared with damages for breach of contract or other infringements,the wrongful life claim is different in that it can ask for the special damages instead of the general damages.But if there is no specific method for the damage calculation,it will result in that the amount of the damages is too slight to make up the baby's injury,and thus cannot ensure the baby's rights and interests.Therefore,it is practical to ensure the damage calculation methods.