The Health-care Provider's Civil Liability in Cases of Wrongful Life: An Estonian Perspective

• Author: Dina Sõritsa
• Pages: 43-51

Dina Sõritsa

Doctoral student

University of Tartu

The Health-care Provider’s Civil

Liability in Cases of Wrongful

Life: An Estonian Perspective

1. Introduction

Most parents expect their children to be free from any ailments and, accordingly, seek health-care assis-

tance in order to eliminate risks to the health of their future child, especially where there exists a hereditary

illness or the risk of the child being born with a disability.*1 In their choices, the parents are dependent on

the information they receive from the health-care provider. However, it should be clear that not every birth

of a disabled child can or should be followed by the health-care provider’s obligation to compensate for the

damages.

Unwanted pregnancy and the birth of a disabled child give rise to several claims that have been recog-

nised in the case law. Perhaps the most controversial is the child’s claim of wrongful life, wherein the child

alleges the existence of damages through having been born disabled for reason of negligence by the health-

care provider in failing to diagnose or warn about the disability or risk of disability.*2 Even if the presence

of negligent conduct of the health-care provider is recognised, there are several obstacles to establishing

the harming of an interest and establishing of causation, along with the existence and the extent of damage.

Courts in Europe do not generally satisfy claims of wrongful life.*3 The situation is similar in the US,

except in some jurisdictions that allow these claims.*4 In Estonia, case law addressing cases of wrongful life

(as well as claims made by parents that arise from unwanted pregnancy and the birth of a disabled child)

is completely absent, which makes theoretical analysis of the possible outcome under the Estonian Law

of Obligations Act*5 even more intriguing. This article examines various law systems’ arguments as to the

1 J.K. Mason et al. Law and Medical Ethics, 8th edition. Oxford University Press 2011, p. 338.

2 Because the claims of wrongful life do not involve the disabled child’s parents’ claims, the latter are not analysed in the pre-

sent article. Parents’ claims arising from an unwanted pregnancy or the birth of a disabled child are regarded, respectively,

as claims of wrongful conception (e.g., Lovelace Medical Center v. Mendez, 805 P.2d 603 (N.M. 1991)) and wrongful birth

(e.g., Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978)). For discussion of wrongful conception and wrongful birth, see, for

example, K. Wevers. Prenatal torts and pre-implantation genetic diagnosis. – Harvard Journal of Law & Technology 24

(2010) /1 (Fall).

3 Nevertheless, there have been successful wrongful-life claims, as in the Dutch case of Kelly Molenaar (Hoge Raad, 18.3.2005,

Rechtspraak van de Week 2005, 42) and the French case of Nicolas Perruche (Cass. Ass. Plén., 17.11.2000, JCP G2000,

II-10438, 2309).

4 In the US, claims of wrongful life are allowed in California (e.g., Turpin v. Sortini, 643 P.2d 954, 966 (Cal. 1982), New Jersey

(e.g., Moscatello v. Univ. of Med. and Dentistry of N. J., 776 A.2d 874, 881 N.J. Super. Ct. App. Div. 2001), and Washington

(e.g., Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 495 Wash. 1983).

5 The Law of Obligations Act is available in English via http://www.legaltext.ee/.

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JURIDICA INTERNATIONAL 23/2015

http://dx.doi.org/10.12697/JI.2015.23.05