Wrongful Birth/Life suits

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General comment

As there are a lot of confusions around the different terms here my definitions

1) Wrongful life means the the child sues the mother or other people for being born.

2) Wrongful birth means the mother sues other people for being burdened with a disabled child something she could have avoided. In essence wrongful birth suits are genetic or prenatal malpractice suits tort cases

3) Wrongful pregnancy means that you became pregnant or had a child period without wanting it (this happens if a pregnancy isn't detected or a sterilisation procedure fails the difference between 1-3 in my eyes is that in 2) the child is damaging the mother.

in 1) the child him/herself can say they were wronged and they could at least theoretically say that based on their impairment or based on the societal framework.

3) is like 2) but not based on disability. Interestingly if you sue for 3) you will like in USA be compensated for the cost of e.g. the sterilisation procedure but NOT for the cost this addittional child will cost you till he/her is 18. But in 2) you will get payments for the costs the kid cost you (very likely lifetime costs). The rational for not giving child
related cost s to the mother in case 3) the non disabled child is that having a child is so great that you can't get reimbursed for it. but in 2) in the case of the disabled child that argument of 3) is not used because having a disabled child is truly not a good thing and so you the mother were harmed.

Beside that, there is case 4)

4) wrongful breech of warrenty means that a mother or child can sue because a bad embryo was used in the IVF procedure in the case preimplantation diagnostic is available. UK below opens possibility that child can sue related to preimplantation diagnostic

HFE Act1A; (1) (UK) In any case where

(2) Subject to subsection (3) below and the applied provision of section 1 of this Act, a person (here referred to as "the defendant") is answerable to the child if he was liable in tort to one or both of the parents (her referred to a "the parent or parents concerned") or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent or parents concerned suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.

(3) The defendant is not under this section answerable to the child if at the time the embryo, or thre sperm and eggs, are placed in the woman or the time of her insemination (as the case may be) either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the act or omission).


The case in France:

1) The courts allowed wrongful birth and wrongful life suits

2) The parlament just prohibited wrongful life not wrongful birth suits

3) THat means the ultrasound technicians, the physician  or whoever can still be sued. It is just that the mother sues and not the kid and  that the argument is that the birth of the disabled child was damaging the life of the mother. THe situation in regards to devaluation of a disabled child still exist. So does the liability of the practicioner.  

The case in the Netherlands

Links and Newsarticle

Links to Legal decisions/legal briefs

Academic Article

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