A la fac de droit, on devait faire des trucs comme ça (mon devoir) ; après 5 ans sans faire d´anglais (j´étais en L, c´est chaud) :
"These two articles deal with “wrongful birth” cases. Such cases concern actions brought by parents in situations where the child either was unwanted from the outset, for instance when an abortion failed, or became unwanted later on, because of an illness of the mother discovered during her pregnancy. These actions are brought against a third person, mostly a doctor or a clinic, when the birth of the child is “due” to a wrongful act of this third person, which gives rise to liability. “Wrongful birth” must be distinguished from “wrongful life”. In the latter, the action is brought by or on behalf of the child itself. In this essay, I will examine wrongful birth, and I will compare it to wrongful life.
First of all, it can be noticed that as far as wrongful birth is concerned, the claimant can sue in both tort and contract law. But it appears that, in fact, medical liability is in principle treated as a contractual matter. For example, in France, the Court de cassation has considered since the Mercier judgement of 20 May 1936, that there is, between the physician and his or her patient, a legally recognized contract under which the physician undertakes, if not to cure the patient, then at least to provide him or her with medical care and not just any kind of care, but diligent and needful care which, save for exceptional circumstances, is in accordance with established medical science.
If the contractual and tortuous liability regimes protect the same rights and interest, and in principle give rise to the same kind of awards, private patients often prefer to sue under contract law because, as Lexa Hilliard says, “contract traditionally, has had a more formalistic reputation and thus allegations in contract may appear more precise and substantive than in tort”. It also appears to be more interesting to sue under contract law when the damages provided for in the contract are high: as the contract is binding the parties, the judge will be forced to allow such high damages, in case of breach of this contract.
On the contrary, under tort law, the judge is free to assess the total amount of damages. For example, in McFarlane v Tayside Health Board, lord Slynn of Hadley rejected the claim of both parents for the cost of maintaining the child, and considered that “it is not fair, just or reasonable to impose on the doctor or his employer liability for the consequential responsibilities, imposed on or accepted by the parents to bring up a child. The doctor does not assume responsibility for those economic losses. If a client wants to be able to recover such costs he or she must do so by an appropriate contract.” So, contract is more interesting for the parties, because it allows to modulate in advance (in favour of the parents, or reversely, in order to limit the liability of the surgeon) the total amounts of damages due in case of breach of the contract. But, it can also be a problem, if there is a type contract imposed by the dominant party to the other one, in order to limit its liability.
Secondly, wrongful birth raises another question: what are the heads of damage which may give rise to compensation? In order to answer this question, it can be remarked that today, it is generally acknowledged that wrongful birth constitutes harm to the mother, regardless of whether the child is born handicapped or healthy. So, it appears to be normal that there be a civil sanction for the tortuous interference with the bodily integrity of the woman, and compensation for losses including an equitable amount for the non-material prejudice that the woman withstood in connection with a failed abortion or the birth of a handicapped child. In contrast, the existence of the child itself, as opposed to the cost of maintaining the child, can’t be regarded as recoverable damage.
It can also be remarked that, in Great Britain, the cost of bringing up an unwanted child won’t always be regarded as recoverable damage. A distinction must be made between two situations. On the one hand, if the unwanted child is born with congenital disabilities, like in Emeh v Kensington and Chelsea and Westminster Area Health Authority, damages corresponding to the cost of upbringing can be allowed by the judges. However, this cost will be limited to the extra costs attributable to the child’s disabilities.
On the other hand, if the unwanted child is healthy, like in McFarlane v Tayside Health Board, the judges admit damages corresponding to expenses caused directly and immediately by the pregnancy and birth, but they refuse to grant damages corresponding to the cost of bringing up the child. In McFarlane, Lord Steyn justified this solution from the point of view of distributive justice, which is concerned with the just distribution of burden and losses among members of a society. So, he found that it would not be morally acceptable, relying on principles of justice, to grant compensation in this case, given the fact that many other claims and grievances surrounding parenthood (absence of children, disabled children) do not attract compensation.
This position is, in my opinion, open to criticism. In comparison, in a case in which were raised similar questions, the Hoge Raad (Netherlands), chose a different (and better, for me) solution, in a judgement of 21 February 1997. In this case, the plaintiff and her husband already had two children. They decided not to have any more children, and they informed the defendant doctor of this when asking him to insert an intra-uterine device (IUD). Later on, the defendant removed the IUD, but neglected to replace it with a new one and to inform the plaintiff of that fact. He and his insurer recognized this conduct to be a professional fault in the performance of the medical contract between the doctor and the plaintiff. A healthy child was born, and the plaintiff asked for compensation for, amongst other heads of damage, loss of income and expenses to educate the child until the age of 18. The Hoge Raad quashed the interlocutory judgment of the court of appeal in which it was held that the expenses of maintaining and educating the child could only be compensated under exceptional circumstances (e.g. because the birth of the child caused the plaintiff to be in financial difficulties).
For the Hoge Raad, the award of compensation for expenses to raise the child, which was born normal and healthy like in McFarlane v Tayside Health Board, is not in conflict with the human dignity of the child, or with its right to life, as it is one thing to see the child as a head of damage as such, which is unacceptable, and another thing for the parents to accept the child, once it is there, but to ask for compensation for the additional burden on the family budget caused by the doctor’s fault, which is acceptable. So, I quote “it is also in the child’s interest that the parents should not be refused the possibility of compensation on behalf of the whole family, including the new child”, and “it may be assumed that parents are in general able to make it clear to the child that such an impression of rejection is incorrect, even apart from the fact that they themselves may contradict such an impression by raising the child with loving care.”
In my opinion, there should be a compensation for the cost of upbringing the unwanted healthy child, as it exists in the Netherlands. This compensation may be limited, and may not correspond to the exact cost of upbringing, in order to limit the liability of the surgeons, and to prevent any pernicious effect (like the lack of interest and of people in some areas of medicine, due to judicial risks) , but it should exist, even if it is symbolic.
Thirdly, if I compare wrongful birth to wrongful life, I can remark that the latter has a much more limited area of application. First of all, unlike wrongful birth, in wrongful life, the claimant can only sue in tort law. This solution is evident, as it is impossible for an unwanted child to sign a contract before its birth. Furthermore, two conditions are required, in a wrongful life action: the unwanted child must be born alive, and must have suffered harm in utero. These conditions can be explained by the fact that, as it has no legal personality, the foetus which is injured and perishes in utero cannot claim damages, and has no right which could be transferred to its parents or heirs. It must also be repeated that the existence of the child itself can never be regarded as recoverable damage: so, a healthy child could not sue for only being born.
In France, wrongful life has been implicitly allowed by the Court de cassation in a judgement from the première chambre civile of 26 March 1996. Since then, this position has been confirmed, notably by Cass.crim, 4 February 1998, where the Court de cassation allowed a child who was conceived through rape to bring a claim for damages against the rapist, and by the famous Perruche case (17 November 2000). It can also be noted that the Conseil d’Etat, in a judgement of 14 February 1997, did not not follow the Court de cassation’s position and denied a wrongful life claim. In Great Britain, the Congenital Disabilities Act 1976 also grants an action to the child, but only if the child is born alive and disabled and if the defendant was actually or potentially liable in tort to either parent of the child for the act or omission which led to the disability.
To conclude, it can be said that wrongful life raises more moral problems than wrongful birth does. So, as the unwanted child can claim damages from the moment of birth (as he then acquires a legal status of his or her own), and as liability towards the child is not limited to instances of wrongful medical diagnosis or treatment, but may also arise in the case of accidents, and in particular road traffic accidents, an action from a child against his or her mother for the damage that she caused to him or her in having, for example, a road accident before his or her birth."
5 à 10€ selon la qualité. 
Et je suis assez bosseur ! ^^
