Child as harm
Wrongful life and Wrongful life (Engl. Lossy with an error of life ) are legal buzzwords that unintentionally hampered the legal problems to one or even describe against the will of parents born child.
The initial situation is usually that the doctor of a pregnant woman culpably failed to recognize that the child will be born disabled or that an abortion will fail due to a treatment error. After the birth of the child, the parents take legal action against the attending physician due to contractual and tortious liability and claim, for example, the costs of child maintenance as damage. The child's own claim for damages is at least conceivable.
“Child as harm” describes the problem from the perspective of the parents, “wrongful life” from the child's point of view. The “wrongful life” problem involves the question of whether the child could have been harmed by an action without which it would not exist ( non-identity problem ).
Legal treatment in Germany
In Germany, such a claim for damages is only possible within narrow constitutional limits. The first problem is that the treatment contract was usually only concluded with the mother and not with the father. However, due to the principles of the contract with protective effect in favor of third parties , the father is also entitled to a claim for damages. The damage that can be compensated is not the child as such, since human dignity, which follows from Art. 1 GG , prohibits classifying the child as a damage item, as the Federal Constitutional Court made clear in an obiter dictum . However, the maintenance costs of an unplanned child represent damages that can be reimbursed, since only two financial situations are compared with each other according to § 249 BGB ( difference hypothesis ). There is no distinction between the additional costs due to the disability and the costs for a non-disabled child, since these costs are not divisible. According to a judgment of the Higher Regional Court of Frankfurt am Main on August 9, 2018, it is also possible to demand the costs of building a house for the disabled as compensation.
The main question of the problem is whether the child is also entitled to compensation, since if the child is included in the scope of protection of the contract, this would amount to a claim to non-existence . In the case of lawful alternative behavior, the doctor would have informed the pregnant woman about the child's disabilities and the pregnant woman would have decided to terminate the pregnancy . There is no right to non-existence, and it would also be incompatible with Art. 1 GG. In this respect, the child is not entitled to any claims for damages.
Legal treatment in Austria
In Austria , the Supreme Court has so far only awarded damages in cases in which a disability or deformity of the child was not recognized due to an incorrect prenatal diagnosis and the abortion of the child (in Austria according to § 97 StGB , if there is an "embryopathic indication", punishable ) Child was absent. In these cases, in the opinion of the highest court, the parents are to be reimbursed for the entire maintenance costs, and not just the additional costs caused by the disability. In contrast, in cases in the “wrongful conception” category, in which the failure of contraceptive measures (e.g. vasectomy, fallopian tube ligament) led to an unplanned pregnancy, no compensation was awarded at all because a healthy child could not represent “harm” in the legal sense. In a decision from 1999, the Supreme Court ruled out a claim for damages by the (disabled) child with regard to their undesirable life (“wrongful life”).
literature
- Eduard Picker: Compensation for unwanted own life - "Wrongful Life". Tübingen jurisprudential treatises, vol. 80, Tübingen 1995.
Individual evidence
- ↑ Hans Reis; The right to life of the unborn child as a constitutional problem; Page 158
- ↑ BVerfG , judgment v. May 28, 1993, Az .: 2 BvF 2/90
- ↑ BGH , judgment v. March 28, 1995, Az. VI ZR 356/93 ; approvingly BVerfG , NJW 1998, 519
- ↑ Christian Rath: Judgment on damages after a doctor's mistake: House building for handicapped child possible. In: taz.de . October 2, 2018, accessed October 9, 2018 .
- ↑ OGH JBl 2008, 521; see. on this also Andreas Spickhoff , The Development of Medical Law 2008/2009 , NJW 2009, 1716 (1719), Jakob Cornides, The Child-as-Damage Case Law of the Austrian Supreme Court (PDF; 455 kB) ZfL 1/2009, p. 3 .
