Extract
[...] These lawsuits are distinct from claims for wrongful birth and wrongful pregnancy, brought respectively by the parents of a disabled child or the parents of a healthy child but one that was unwanted. To discuss the topic of "Wrongful life", we will rely on the following 3 articles: "The Use and Influence of Comparative Law in Wrongful Life Cases" by Ivo Giesen, "Wrongful Analysis in Wrongful Life Jurisprudence" by Deana A. Pollard and "Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems" by Ivo Giesen. Summaries and commentary of articles Pollard, D. A. (2003). Wrongful analysis in wrongful life jurisprudence. Ala. L. Rev., 55, 327. [...]
[...] However, some legal scholars call for a relaxation of this stance, arguing that it unjustly deprives victims of medical negligence of avenues for legal recourse. They advocate in particular for recognition of the "loss of opportunity" harm related to the avoidable birth of a disabled child. Thus, French doctrine appears more restrictive than in other countries on this complex issue at the intersection of ethical, social and legal questions. Conclusion Through this study and comparison of the French and foreign approaches, it is clear that the issue of "wrongful life" raises complex legal issues involving ethical considerations. [...]
[...] Comparative law remains useful for shedding light on the various possible reasoning, without dictating a definitive solution. In conclusion, "wrongful life" is a delicate issue at the intersection of law, ethics and policy, with diverse solutions depending on national contexts but no definitive answer from legal arguments alone. Continued discussion and progress on this evolving debate is important. Sources Giesen, I. (2009). Of wrongful birth, wrongful life, comparative law and the politics of tort law systems. THRHR, 72, 257. Giesen, I. (2012). The use and influence of comparative law in 'wrongful life'cases. Utrecht Law Review, 35-54. Pollard, D. [...]
[...] Of wrongful birth, wrongful life, comparative law and the politics of tort law systems. In the article "Of wrongful birth, wrongful life, comparative law and the politics of tort law systems", published in 2009, I. Giesen, Professor of Private Law at Utrecht University, addresses the complex issue of "wrongful birth" and "wrongful life" actions that raise delicate legal and ethical issues. (Summary) The text examines the delicate question of medical liability in cases of unwanted or disabled birth through a study of "wrongful birth" and "wrongful life" claims. [...]
[...] Ultimately, it is cultural considerations and the specific context of each legal system that determine the approach adopted, as illustrated by the opposition between Dutch and South African rulings. (Commentary) Regarding the nature of the actions, there is a debate between proponents of a contractual or tortious interpretation. While the tortious approach seems to prevail given the alleged breaches of duty, contractual liability is not excluded considering physicians' undertakings. At the heart of the dispute is the right to self-determination, notably regarding procreation. [...]
