| The tort compensation of wrongful birth is a relief problem caused by the the failure in terminating pregnancies of the pregnant woman in time and giving birth to the baby with birth defect due to the failure of the doctor to properly fulfill the obligation of informing them in the process of prenatal diagnosis.It was first seen in the United States and then appeared in countries all over the world.It is highly controversial in the fields of law,sociology and ethics.The cases of wrongful birth appeared late in the mainland of China,and academic research is relatively less.Issues such as the determination of damage and the definition of the scope of compensation in such cases are controversial,and a general explanation has not yet been formed.In addition,tort cases of wrongful birth are relatively new compared to ordinary medical tort cases.And the provision of legislation regarding the wrongful birth related question is less.In judicial practices,courts usually directly apply the law related to compensation for personal injury or cite relevant theories as the basis to support compensation for tort caused by wrongful birth.Besides,our country’s judicial practices mostly focus on sharing loss and easing the doctor-patient contradiction,which cause the ignorance of responsibility determination.It often results in large discrepancies in judgment results.In this context,it is of great theoretical and practical value to carry out research on the related issues of compensation for the tort of wrongful birth,and to conduct detailed discussions of liability establishment and liability assumption.To be specific,firstly,this paper discusses the connotation of compensation for the tort of wrongful birth,and then tests the constituent elements of compensation for the tort of wrongful birth which includes damage;act;causation and negligence.Secondly,through the study of the case,it summarizes the problems reflected by the large discrepancies in judgment results: the definition of the object of tort is not clear,the subject of the right of compensation for tort is not clear;the scope of compensation for tort is not clear;the way of calculating the amount of compensation for tort is not clear;the reason for the exemption of medical institution is not clear.Finally,this article combines theoretical analysis and puts forward suggestions to improve our country’s wrongful birth tort damage compensation system for the above-mentioned problems in practice. |
