Court decisions in wrongful birth cases as possible discrimination against the child

  • Petr Sustek Charles University Law School, Czech Republic
  • Martin Šolc Charles University - Faculty of Law

Resumo

Abstract: The term wrongful birth denotes a claim brought by the parents of an unwanted child who was conceived or born due to medical negligence. The claims are often dismissed as contradictory to good morals or public order. However, there remains a neglected question whether the court decision to award or dismiss damages could constitute discrimination against the child concerned. While the child is not a party to the litigation, it is nevertheless unacceptable for the court not to take into account the effects of its decision on the child. In the case of award of damages, the court publicly affirms the legitimacy of the parentsꞌ need for compensation, that is the fact that the childꞌs birth represents recoverable harm to them. The court decision therefore means a different treatment in respect to other children whose benefits for the family are generally recognized and praised by the society. That might have serious psychological consequences for the child, depriving her or him of the full enjoyment of the right to dignity. This fact constitutes discrimination on the grounds of birth, which can be justified only by very weighty reasons. Such reasons may be arguably given in the case of a child incapable of understanding the meaning of wrongful birth litigation, whose special needs are extremely burdensome on the family. On the other hand, the dismissal of the claim cannot represent a negative discrimination against the child.

Keywords: Discrimination. Wrongful birth. International human rights law. Human rights of the child. Convention on the Rights of the Child.

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Biografia do Autor

Petr Sustek, Charles University Law School, Czech Republic
Coordinator of Centre for Medical Law and a member of the Civil Law Department at the Charles University Law School.
Martin Šolc, Charles University - Faculty of Law

Doctor in law at the Charles University Faculty of Law, Czech Republic. He has been carrying out a long-term cooperation with the Centre for Medical Law at the Faculty of Law, Charles University. Co-author of Health Law (Wolters Kluwer, 2016), the main handbook of contemporary health law in the Czech Republic.

Publicado
28-04-2017
Como Citar
Sustek, P., & Šolc, M. (2017). Court decisions in wrongful birth cases as possible discrimination against the child. Espaço Jurídico Journal of Law [EJJL], 18(1), 31-48. https://doi.org/10.18593/ejjl.v18i1.12378