Research on Compensation Liability for Wrongful Birth Tort

Abstract

In recent years, the concept of eugenic gradually became popular in our country while medical technology developed rapidly. The increasing prevalence of prenatal testing has been accompanied by an increase in the number of wrongful birth cases. Wrongful birth mainly refers to the birth of disabled children due to the negligence of doctors who fail to diagnose the potential birth defects of the fetus or fail to properly inform the parents. Wrongful birth damage liability is a concurrence of breach of contract liability and tort liability. From the perspective of protecting parents of defective children, the choice of tort liability relief path is more advantageous. The constitution of compensation liability includes the illegality of medical behavior, the fact that the child's parents have damage, the causal relationship between the illegality of medical behavior and the loss of the child's parents, and the fault of the medical institution. The body responsible for compensation should be the medical institution rather than the medical staff in charge of prenatal examination at that time. The scope of compensation should not include general maintenance costs, but support should be given to special maintenance costs and compensation for emotional distress. The reasons for exemption and exemption of liability of medical institutions include three kinds: limited medical treatment level, consent of fetal parents and fault of fetal parents.