错误出生之诉的法律分析

The Analysis of the Suit of Wrongful Birth

错误出生之诉是由畸形儿父母针对医疗服务机构提起的,以畸形儿出生所引起的额外损失为索赔对象的诉讼。医疗服务机构或承担侵权责任或承担违约责任。但由于侵权之诉中有精神损害赔偿这一内容,遂以医疗服务机构侵权做为父母获偿的基础最为有利。基于父母与子女之间亲属法上特别之抚养照顾义务,目前就医疗服务机构损害赔偿之范围多有争议。且错误出生乃借鉴英美法上之概念,对其性质以及相关概念的区分也是研究错误出生之诉中不可回避的议题。

The suit of wrongful birth is defined as the deformity＇s parents sue the hospital for compensation for damage caused by the deformity. It＇s sure that the hospital ought to assume the liability of breach of contract or tort liability. However, the tort liability containing the compensation for mental damage, which the parents suffer most in such events, is most favorable for the plaintiff. On the basis of the special duty of mutual raising and attending between parents and children, at present, the spectrum of the compensation is still controversial. Besides, wrongful birth should also be is the concept of the Anglo-American law, its attribute and some relative concepts carefully analysed.