Wrongful Birth

The reproach of “wrongful birth” or “wrongful progeny” is one that is made by parents against doctors who have neglected to prevent the beginning of the existence of a child suffering from a detectable or predictable (genetic) defect, even though the medical-technical resources and/or the relevant better knowledge were in fact to hand that might have obviated such an eventuality.  Often, the parents in question even make to these doctors the reproach that, had they wanted to, they could have helped them to bring to birth another child: a healthy one.

In response to such complaints from parents one court judgment passed in Germany – namely in the Higher Regional Court in Bamberg in 1978 – argued that the birth of a child never constituted, even in part, a “value negation” but rather in every case a “value realization”. A different judgment was passed in 1980 by the German Federal Supreme Court which recognized that there did indeed exist a right to compensation in cases where, as a result of a medical error, a child has ended up coming into the world – and this even in the case where the child in question is a healthy one (see Eduard Picker, Schadenshaftung für unerwünschte Nachkommenschaft) This judgement put into circulation a certain “buzzword” – “the child as compensable damage” – which drew attention to how “the value of human life”, hitherto posited as an absolute, has recently become subject to relativization and even to reconceptualization as a negative.

If a child begins to exist as a consequence of a pharmacological or medical error, and if a doctor or a chemist is compelled to pay, as it were, “maintenance payments” for the child thus erroneously brought into the world, there may occur to any child who gleans that his birth may have occurred contrary to his parents’ wishes and desires the thought à”Pardon me for having been born!”

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