Damages Subject to Compensation in Cases of Wrongful Birth: A Solution to Suit Estonia

Author:Dina Sõritsa

In cases of wrongful birth, parents seek compensation for any damage related to birth of a disabled child. The claim is made against the health-care provider for negligent failure to detect foetal defects, which has as a consequence loss of the opportunity of the parents to decide to terminate the pregnancy in a timely manner. Case law on this topic is absent in Estonia. Accordingly, the article... (see full summary)

Dina Sõritsa
Doctoral student
University of Tartu
Damages Subject to
Compensation in Cases
of Wrongful Birth
A Solution to Suit Estonia
1. Introduction
The scienti c and medical advances of recent times have enhanced the possibilities o ered by prenatal
testing. This has increased parental expectations as to abilities of a health-care provider*1 to detect foetal
defects. Therefore, parents can avoid the enormous nancial burden and frustration that could otherwise
follow the birth of a disabled child.
This article analyses whether the health-care provider should be held liable under Estonian law for a
disabled child’s expenses and compensate for the non-pecuniary damage if the child was born as a result of
misdiagnosis and the consequent loss of opportunity of the mother to terminate the pregnancy in a timely
manner. These cases are known as cases of wrongful birth.*2
In Estonia, there is no case law on this topic. It has been proposed that compensation in these cases
in Estonia would be conceivable if the damage were to arise from a breach of contract for provision of
health-care services.*3 However, the damage subject to compensation under the Estonian Law of Obliga-
tions Act (LOA) has not yet been analysed. It could be alleged that the main object of discussion in wrong-
ful-birth cases is the question of whether and to what extent the child’s maintenance costs are subject to
Қ Generally, a health-care provider is a legal person who runs a hospital or a physician. Under Estonian law, a quali ed doctor,
dentist, nurse, or midwife providing health-care services independently who participates in the provision of health-care services
and operates on the basis of an employment contract or other, similar contract entered into with a provider of health-care
services shall also be personally liable (under võlaõigusseadus, RT I қҙҙҚ, ҡҚ, ҝҡҠ, RT I, ҚҚ.ҙҜ.қҙҚҟ, қ, §ҠҞҡ (қ)). The Law
of Obligations Act and other, more important Estonian legal acts are available also in English, via http://www.riigiteataja.
ee/. ‘Health-care provider’ is the general term used here to refer to the subject liable for the damage.
қ The birth of a disabled child also gives rise to a controversial claim of wrongful life issued by the disabled child. In the case of
an unplanned pregnancy and birth of a healthy child, the parents may have a claim of wrongful conception, under which the
health-care provider’s negligence lies in failure to prevent or terminate the pregnancy. About these cases and the possibility
of the health-care provider’s liability in these cases under the Estonian Law of Obligations Act, see also D. Sõritsa, J. Lahe.
The possibility of compensation for damages in cases of wrongful conception, wrongful birth and wrongful life: An Estonian
perspective. – European Journal of Health Law қҚ (қҙҚҝ) / қ, pp. ҚҝҚҚҟҙ, – DOI: http://dx.doi.org/Қҙ.ҚҚҟҜ/ҚҞҠҚҡҙҢҜ-
ҚқҜҝҚҜҚҚ D; Sõritsa. The health-care provider’s civil liability in cases of wrongful life: An Estonian perspective. – Juridica
International қҙҚҞ (қҜ), pp. ҝҜҞҚ. – DOI: http://dx.doi.org/Қҙ.ҚқҟҢҠ/JI.қҙҚҞ.қҜ.ҙҞ.
Ҝ B. Winiger et al. Digest of European Tort Law, Volume : Essential Cases on Damages. Berlin & Boston: Walter de Gruyter
GmbH & Co. KG қҙҚҚ, p. ҢҞҝ. – DOI: http://dx.doi.org/Қҙ.ҚҞҚҞ/ҢҠҡҜҚҚҙқҝҡҝҢҝ.

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