The Study Of Compensation For Wrongful Birth Damage

In academia,there are still disputes about whether the liability for damages for wrongful birth should belong to the liability of compensation for breach of contract,tort liability,or the liability coincidence of both.Therefore,this paper will discuss the damage compensation for wrongful birth under different relief paths from the perspectives of the establishment of the basis of claim and the scope of liability for damage compensation.Chapter one: in this chapter the main problem in the wrongful birth and the analysis about that will be discussed.Through empirical study,the author finds that the cases of compensation for the damage of wrongful birth in China mainly includes two types: the cases for compensation for the breach of medical service contract and those for medical tort damage.The common problems of these two are the confusion of the basis of claim and the scope of damages,whether the father can be the proper plaintiff in the lawsuit of breach of contract,and whether the defective child can be the proper plaintiff in the lawsuit.Chapter two: medical service contract should be an anonymous contract.Therefore,the basis of claim for damage of breach of medical service contract is based on the general provisions of Article 107 of Contract Law of China.According to Article 113(1)of the Contract Law,the compensation shall be calculated by the losses caused by the breach of contract and including the interests receivable after the performance of the contract and not exceeding the probable losses that can be foreseen by the party in breach when concludes the contract.But for what belongs to the interest receivable after the performance of the contract,it is necessary to determine through comprehensive consideration of existence of damages,causation in the extent of liability,as well as the predictable losses of the breach of the contract.The damages that can be compensated in the case of wrongful birth include the expenses paid by the pregnant woman for childbirth and the follow-up medical treatment and maintenance of the defective child;however,under the path of compensation for breach of contract,spiritual compensation should be excluded.According to the relativity principle of contract,the mother(pregnant woman)is the only subject of claim for damages arising from breach of contract.Since father is not the party,and according to the provisions and principles of the contract law of China,it cannot be protected by the contract theory of conditional protection of the third party.Chapter three: the basis of claim for tort damage compensation is Article 54,of the Tort Law of China,which stipulates that if the patient suffers damage in the diagnosis and treatment activities and the medical institution and its medical personnel are at fault,the medical institution shall bear the liability for compensation.The factors of establishing tort liability for damage compensation include the fact of right damage,the duty of action of medical personnel,the breach of the duty of action and the establishment of liability;the element of fault is included in the element of breach of duty.Whether the Right to Choose and Know of Eugenics in wrongful birth cases can be included in the scope of civil rights and interests in Article 2 of the Tort Law is still in doubt.So the author suggest it to be regarded as a loss of opportunity.Compared to the compensation for the damage of breach of contract,tort damages also include spiritual damages.Under the remedy path of tort damages,the subject of asking for compensation for damages include both mother and father.The disease of defective children is the result of congenital physical development,and medical institutions' negligence in medical acts infringes not the relevant rights of the defective children.Therefore,the author believes that defective children do not qualify to file tort damages in the wrongful birth cases.Chapter four: The only difference between the compensatory damages for wrongful birth in the case of breach of contract and the case of tort is mental damages.The common compensation scope includes: the defect child's treatment expense and the parents' missing work expense which consisted by the medical treatment expense,the hospitalization food supplement expense,the nutrition expense,the transportation expense,the missing work expense and the funeral expense;the cost of prenatal examination;additional alimony,which includes follow-up treatment costs,disability equipment costs,dependency care costs,etc.;and appraisal fees.The main differences between these two are whether the compensation for emotional damages can be compensated,and the degree of protection of the rights of fathers with defective children.