Wrongful birth and wrongful life. Floodgate argument and the balancing of conytrasting rights in courts law making

Abstract

The decision analyzed affects damages forthe born child because of the impossibility for the mother to exercise the right to abortion, as the diagnosis was missing and she was not aware of the hard risk for her physical and psychological health coming from the birth of a child affected by “down syndrome”. The study starts from the distinction between: a)Wrongful birth: the personal damages suffered by pregnant women, who have not had the possibility of self-determining in the prosecution of the pregnancy in case of pathological processes of the fetus; in particular, in those cases when a disease exposes herself and her health to a severe risk (a pre-condition for abortion, according to the Italian L. 194/1978), caused by the doctor's breach of contract and, in particular, because of the latter not informing the patient of the fetus illness. b)Wrongful life: the damages suffered directly by the conceived but not yet born fetus, because of the missed abortion; this category of damages has been invoked often by parents in case of fetus malformations o genetic diseases, when it is not possible to ascertain the doctor's responsibility for the child's health damages, since the disease preexisted to medical treatment and intervention. The wrongdoing concerns only the lack of diagnosis and of subsequent information, as the woman consequently could not exert her right to choose abortion and the child was born, while she/he shouldn’t have. After years of contrasting decisions SS.UU., has stated that there is no place for a “right to birth only if healthy” in the Italian legal system. In analyzing such decision, the study focus especially on: I. burden of proof; II. potential plaintiffs of such kind of action (parents, brother and sisters of the child and the child her/himself); III. comparative insights on how legislation, judges and scholars in other legal systems (Great Britain and France) have managed with the floodgate argument, the rights of both the woman and the “unborn” child.