"Wrongful birth" : liability an indemnification
Published on : 18/02/2011
Author / Source : Fernand Keuleneer
This article is dated 1998. We thank the author for authorising us to publish it.
1. Both the Netherlands' Hoge Raad ("HR") and Germany's Bundesverfassungsgericht ("BVerfG") (Erster Senat) rendered in 1997 judgments concerning "wrongful birth" claims.
In the Dutch case, a physician, at the occasion of a surgery, had removed a contraceptive implant and, without advising his patient, had not replaced it. In the first case before the BVerfG, a failed sterilization procedure carried out by a medical doctor who had been family planning counselor to the husband of plaintiff, was followed by a pregnancy; again, the doctor had neglected to inform his patient of the failure. In both these cases, the "resulting" child turned out to be "normal" and healthy.
This was different in the second German case. The parents of a disabled daughter, fearing a genetic predisposition, had chosen to undergo a medical examination in a specialized institution in order to find out whether indeed such a condition existed and could lead to the re-occurrence of the same disabilities should they have another child. They were assured, in a written document, that a genetically transmissible defect was very unlikely, and that therefor no reason existed to avoid a subsequent pregnancy. Nonetheless, the second daughter of the couple was born with the same disabilities as their first child.
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