Damages Subject to Compensation in Cases of Wrongful Birth: A Solution to Suit Estonia
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 proposes a reasoned solution for Estonian law on the question of recoverable damages in cases of wrongful birth through analysis of Estonian, German, and United States legal literature and case law.
The grounds for the health-care provider’s liability under the Estonian Law of Obligations Act are analysed. The main focus is on analysis of compensation for the disabled child’s maintenance costs and non-pecuniary damage. Among other factors, the article examines the ethics dilemma of avoiding the birth of a disabled child, limits to compensation, and the extent of the damages due.