PDA

View Full Version : Wrongful conception



Themis
05-02-2011, 10:43 AM
I'm currently taking a course on medical malpractice law and among the things we discussed was a phenomen called "wrongful conception".
I'm sure all of you are familiar with the problems concerning in vitro fertilisation (IVF) and the birth of handicapped children. In law this is called "wrongful birth"
The difference with "wrongful conception" is this: one parent gets a sterilisation (or vasectomy for men) because they don't want to get kids. For some reason or other, the sterilisation fails, a - perfectly healthy - child is born. Now, the parents want compensation and file a suit for child support.
In Austria the 6th senate of the High Court (OGH) denies the parents an indemnity claim on the grounds that a healthy child (or the support it must receive) cannot be a detriment. In both Germany and Switzerland it is possible to sue the responisble doctor for compensation.
I'm not sure how courts in other countries decide this matter, but my question is: What do people think of it?

Propter W.
05-02-2011, 12:40 PM
Interesting question.

In a case like this, people should be able to sue their doctor (or other medical personnel) for compensation. If the doctor did everything he was supposed to do and did not make any mistakes and provided correct information, I don't think he should be held accountable. If he did make a mistake he obviously should.

I assume the compensation goes to the child?

Themis
05-02-2011, 12:56 PM
I assume the compensation goes to the child?

No. The compensation goes to the parents who are obligated to support the child. They still pay the child support but they may get the sum in question from the doctor.

Emil Miller
05-02-2011, 01:02 PM
I'm currently taking a course on medical malpractice law and among the things we discussed was a phenomen called "wrongful conception".
I'm sure all of you are familiar with the problems concerning in vitro fertilisation (IVF) and the birth of handicapped children. In law this is called "wrongful birth"
The difference with "wrongful conception" is this: one parent gets a sterilisation (or vasectomy for men) because they don't want to get kids. For some reason or other, the sterilisation fails, a - perfectly healthy - child is born. Now, the parents want compensation and file a suit for child support.
In Austria the 6th senate of the High Court (OGH) denies the parents an indemnity claim on the grounds that a healthy child (or the support it must receive) cannot be a detriment. In both Germany and Switzerland it is possible to sue the responsible doctor for compensation.
I'm not sure how courts in other countries decide this matter, but my question is: What do people think of it?

It's a legal matter that is, as you say, applied differently in various countries, but it's reasonable to assume that there should be grounds for compensation if the process produced the reverse of what had been intended.
If, however, the process had been carried out but didn't guarantee success, it is likely that compensation would be contested.

The Atheist
05-02-2011, 04:23 PM
I wonder how infertile couples feel about others who would sue because they had a child.

Lokasenna
05-02-2011, 04:28 PM
Could they not give the child up for adoption? There are plenty of childless couples out there who would want to adopt.

Delta40
05-02-2011, 05:17 PM
They could also abort.

JuniperWoolf
05-02-2011, 08:51 PM
Hmmmm.... I don't think that they should get financial compensation. They should be made fully aware of the risk that the procedure might fail and be made to sign something like a waiver, just like they would if they had any medical procedure.

Themis
05-03-2011, 02:35 AM
Hmmmm.... I don't think that they should get financial compensation. They should be made fully aware of the risk that the procedure might fail and be made to sign something like a waiver, just like they would if they had any medical procedure.

Normally, they are. "Wrongful conception" only comes about if the doctor didn't make himself clear or made a mistake.

@Delta40: That's mostly their argument.

@Loksaenna: That's the tricky part. People who file this kind of law suit do not want their child put up for adoption. They just feel - if I understood correctly - that somebody else should ultimately pay for them.

Buh4Bee
05-06-2011, 10:02 PM
I can see how the Austrian court can view the outcome of the wrongful conception of a health baby as not a detriment. The parents had some choices to make before the child was born such as abortion or adoption. Yet, they still had the child and are now asking for child support or to be compensated for the outcome. The choice to have the child would imply that they are ready to raise the child and handle any financial burden this outcome brings to their lives. Therefore, there is no detriment. On the other hand, if the parents are compensated as is possible in Germany and Switzerland, I think it is a matter judging from the perspective of malpractice on the doctor’s part. If a doctor is negligent, does that mean that their patient is wrongfully harmed? And if so, should they be compensated, not the child?

Nightshade
05-06-2011, 10:35 PM
They could also abort.


@Delta40: That's mostly their argument.


Thee, correct me if I am wrong but didn't you once say Austria is kind of religious? So abortion?

EDIT: Just realised if you are religious unlikley to have got for the surgery in the first place so :brickwall:

Themis
05-11-2011, 04:09 PM
Thee, correct me if I am wrong but didn't you once say Austria is kind of religious? So abortion?

EDIT: Just realised if you are religious unlikley to have got for the surgery in the first place so :brickwall:

Correct, Night. ;) And no, I didn't say that. At least, I can't remember.

@jersea: In a way, they do get the compensation, not the child. The child never actually "sees" the child support. It's what the parents have to spend for the child.
And yes, if the doctor is negligent, he breaches a contractual obligation, so that's where the "unlawful" part comes in. You don't always need to actually harm a person to act unlawful.
(At least in Austria there is a distinction between compensation ex contractu and compensation ex delicto.)