“Should I Have Been Carried From the Womb to the Grave?” The Judicial Practice of Pecuniary Damages for Birth With Genetic or Teratological Harm in Hungary and Its Possible Impact on Medical Practice

Abstract

The medical content of the concept of fetal genetic or teratological harm, or of a disorder incompatible with postnatal life, which is a legal condition of the right of self-determination to terminate pregnancy granted until the 20th/24th week of pregnancy or without time limitation in Hungary, is changing as medical science and diagnostics evolve. Medical bodies, legislature, and judiciary – as well as families – need to reflect on this fundamental issue of society. The article draws lessons and makes recommendations based on the results obtained in the investigation of the practice of the Supreme Court (now: Kúria) and Regional High Courts of Appeal in cases decided between 2015 and 2021. The compensation for damage to parents was granted either to the full cost of raising the child born with an unrecognized genetic or teratological defect or, conversely, merely the additional costs causally related to the nature-based harm were awarded. This survey of the entire body of domestic case law reveals the scope of damages to be paid and the types of wrongful conduct in the diagnosis, information, screening, targeted testing, licensing, or determination of likelihood of disorder. Contrary to its national scope, the article sheds light on correlations useful for the international audience of wrongful birth cases regarding the presumed effect of high compensation amounts on the possible increase in the medical availability of abortion indications.