“错误出生”损害赔偿问题研究-法律专业论文.docxVIP

华中科技大学硕士学位论文 华 中 科 技 大 学 硕 士 学 位 论 文 II II Abstract Wrongful birth is a concept which originates from American laws. It means that the doctor fails to diagnose the potential handicapped fetus when the pregnant women do the prenatal examination, it results in the pregnant women losing the chance to have an abortion and giving birth to a defect baby. The litigation which is taken by the parents of defect baby against medical institution can be called wrongful birth litigation. The effective way to solve those problems needs to balance the interests between medical institution and the patient, and to divide the responsibilities of both sides clearly. Therefore, a damage of wrongful birth is the key point to solving these problems. Damages of wrongful birth concerns a series of problems such as the basis of claims, scope of compensation. This study will discuss these questions through comparative methods and empirical analysis methods. For the basis of claims of damages, those problems were taken as torts to be solved by countries of Common Law, but in the countries of Continental Legal System, it will be dealt by dividing responsibilities in the form of breaking agreements. For the scope of compensation, costs of taking care of defect children such as medical fees, raise fees, caring fees, tuition fees paid by their parents are approved by every country, but for general raise fees, some countries deny it, Germany for example. According to Chinese relative laws, in the cases of wrongful birth, the defendant does not fulfill obligation completely, break agreements. Because of an error of the defendant breaking the duty of attention, violating patient’s knowing rights and discretionary rights, bringing the damages to complaint, so if forms tort. The plaintiff can apply damages either based on breaking agreements and torts or chooses one of them. The scope of compensation includes mental agony, the fees of labor, raising fees of defect baby, special treatment fees, caring