Volume 1, Issue 2

This article examines the controversial topic of compensation in wrongful birth and wrongful life cases from a comparative point of view. As the use of these terms is not uniform, the paper first provides definitions of the terms referred to. Focusing on the question of damage, the article then examines the main arguments brought forward for and against awarding compensation.

In this article, a comparative examination is made of the award of damages for pecuniary losses in cases of wrongful birth, such category including claims in respect of both healthy as well as disabled children. It is argued that such claims do not necessarily infringe the sanctity of human life, so long as it is the economic harm occasioned to parents by the birth of the child which is conceived of as the relevant harm rather than the birth of the child. Further jurisdictional harmonisation in this field, which is already more evident in respect of disabled children than healthy children, will depend upon a common understanding of the nature of the harm in question, as well as a willingness to find solutions to questions of the attribution of responsibility for harm discussed in the article.

Based on an analysis of court cases, constitutional jurisprudence and legal scholarship, the author outlines theories of compensation for non-pecuniary damage applicable in wrongful birth actions and endeavours to identify common policies and tendencies. The notion of damage is taken as the starting point, followed by the examination of the elements of compensable damage and of the dual nature of the loss caused by the tort of wrongful birth. Three groups of theories of compensation for non-pecuniary loss are addressed: personal injury theories, infringements of personal rights theories and the loss of chance theory. Disapproving of the application of the third doctrine to wrongful birth cases, the author focuses on the two principal theories in their different versions. Within the first category, compensation is granted for pain and suffering stemming from pregnancy and the birth of an unwanted child or for the mental shock of having a disabled child. The second theoretical concept is based on the protection of personal rights and dignity. The damage consists in the violation of personal rights or the infringement of the sphere of reproductive autonomy. In a subset of wrongful birth cases – where the pregnancy would have been aborted had the foetus's condition been known – this ground of compensation depends strictly on national abortion laws. In order to remain within the prescribed constitutional standards, the courts avoid the terminology of a ‘right to abortion’ and instead formulate a ‘right to choose’, or ‘right to plan a family’. They also award compensation for the infringement of the patient's rights (to information, to prenatal tests or to abortion procedures). The growing tendency is to underline a woman's right to self-determination rather than to conceive of pregnancy and birth as personal injury. However, in many cases both theories of reparation can be applied. In the final part of the paper the author emphasises the equal legal standing of parents. At the same time, only the parents should be regarded as suffering harm from wrongful birth, whether as direct victims or as victims par ricochet . Finally, the author does not see any grounds for offsetting the claim for non-pecuniary loss against the emotional value of having a child.

Wrongful life claims are filed by a child on the basis that he or she was born handicapped as a result of the negligent behaviour of a physician, who prevented the parents from having the option of having an abortion for eugenic reasons. The term commonly used to refer to these claims suggests that there is something not right about the life of the claimant. Since the implication is that the claimant is challenging life itself, the courts and even legislatures are reluctant to allow such claims. However, some jurisdictions are ready to award compensation to the child if sufficient justification is provided by the court.