Court Decisions in Wrongful Birth Cases As Possible Discrimination Against the Child

Espaço Jurídico Journal of Law [EJJL], Vol. 18, No. 1 (2017), p. 31-48

Charles University in Prague Faculty of Law Research Paper No. 2017/II/5

18 Pages Posted: 17 May 2017 Last revised: 3 Aug 2017

See all articles by Petr Šustek

Petr Šustek

Charles University, Faculty of Law

Martin Šolc

Charles University, Faculty of Law

Date Written: 2017

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 parents’ need for compensation, that is the fact that the child’s 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

JEL Classification: I19, K19, K32, K33

Suggested Citation

Šustek, Petr and Šolc, Martin, Court Decisions in Wrongful Birth Cases As Possible Discrimination Against the Child (2017). Espaço Jurídico Journal of Law [EJJL], Vol. 18, No. 1 (2017), p. 31-48, Charles University in Prague Faculty of Law Research Paper No. 2017/II/5, Available at SSRN: https://ssrn.com/abstract=2968839

Petr Šustek (Contact Author)

Charles University, Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

Martin Šolc

Charles University, Faculty of Law ( email )

Nam. Curieových 7
Praha 1, 116 40
Czech Republic

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