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

• Author: Dina Sõritsa
• Pages: 105-115

105

JURIDICA INTERNATIONAL 24/2016

Dina Sõritsa

Doctoral student

University of Tartu

Damages Subject to

Compensation in Cases

of Wrongful Birth

A Solution to Suit Estonia

1. Introduction

The scientif‌i c and medical advances of recent times have enhanced the possibilities of‌f 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 f‌i 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 qualif‌i 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. ҚҝҚ–Қҟҙ, – 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. ҝҜ–ҞҚ. – 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.

http://dx.doi.org/10.12697/JI.2016.24.11