The Damages from Unwanted Birth in the Italian Legal System: Between Law and Social Consciousness

Abstract

In Europe, the modern legal systems, as a rule, provide for the right of citizens to a free and informed choice in matter of family planning and procreation, and therefore the right of women to resort to abortion in case of medical and social indications, or even in case of the mother’s request to terminate an unwanted pregnancy. However, being abortion not only a legal issue, but also a social and moral one, different legal systems adopt a wide range of normative models, which take into account, among other things, the existing cultural traditions and the influence of Church on society. Many states recognize the mother and other relatives’ right to compensation arising from the birth of an unwanted child. Much more controversial is the recognition of the rights of a child with a congenital pathology to indemnity from unwanted birth as a result of medical error. In the present article it is examined the experience of Italy, a country where family traditionally represents a considerable cultural and symbolic value. The paper reviews the main normative acts governing the performance of abortion. The research investigates the issues concerning the legal regulation of the compensation for damages arising in connection with the birth of an unwanted child. The present study examines the trend, emerging in the judicial practice, towards the recognition of the physically challenged child’s rights to compensation for the damage deriving from the birth as a result of medical errors.