Abstract
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.
