Hoge Raad, 21.2.1997 (Wrongful Birth)

Abstract

In the Dutch case, a physician, at the occasion of a surgery, had removed a contraceptive implant and, without advising his patient, had not replaced it. In the first case before the BVerfG, a failed sterilization procedure was carried out by a medical doctor, who had been family planning counselor to the husband of plaintiff, and was followed by a pregnancy; again, the doctor had neglected to inform his patient of the failure. In both these cases, the 'resulting' child turned out to be 'normal' and healthy. This was different in the second German case. The parents of a disabled daughter, fearing a genetic predisposition, had chosen to undergo a medical examination in a specialized institution in order to find out whether indeed such a condition existed and could lead to the re-occurrence of the same disabilities should they have another child. They were assured, in a written document, that a genetically transmissible defect was very unlikely, and that therefore no reason existed to avoid a subsequent pregnancy. Nonetheless, the second daughter of the couple was born with the same disabilities as their first child. The Hoge Raad and the Erster Senat accept a claim for damages, the Zweiter Senat rejects it.