Catálogo de la Colección "Derecho, Economía y Sociedad" Sitio Oficial de la Facultad de Derecho de la Universidad de Buenos Aires

Regulación jurídica de las biotecnologías

Curso dictado por la Dra. Teodora Zamudio

Equipo de docencia e investigación UBA~Derecho

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 Glosario

Wrongful birth & wrongful life


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HFE Act1A; (UK)

(1) In any case where

º         a child carried by a women as the result of the placing in her of an embryo or of sperm and eggs or her artificial insemination is born disabled,

º         the disability results from an act or ommission in the course of the selection, or the keeping or use outside the body, of the embryo carried by her or of the gametes used to bring into the creation of the embryo, and

º         a person is under this section answerable to the child in respect of the act of omission, the child's disabilities are to be regarded as damage resulting from the wrongful act of that person and actionable accordingly at the suit of the child.

(2) Subject to subsection (3) below and the applied provision of section 1 of this Act, a person (here referred to as "the defendant") is answerable to the child if he was liable in tort to one or both of the parents (her referred to a "the parent or parents concerned") or would, if sued in due time, have been so; and it is no answer that there could not have been such liability because the parent or parents concerned suffered no actionable injury, if there was a breach of legal duty which, accompanied by injury, would have given rise to the liability.

(3) The defendant is not under this section answerable to the child if at the time the embryo, or thre sperm and eggs, are placed in the woman or the time of her insemination (as the case may be) either or both of the parents knew the risk of their child being born disabled (that is to say, the particular risk created by the act or omission).


In other words:

1) Wrongful life means the the child sues the mother or other people for being born.

2) Wrongful birth means the mother sues other people for being burdened with a disabled child something she could have avoided. In essence wrongful birth suits are genetic or prenatal malpractice suits tort cases

3) Wrongful pregnancy means that you became pregnant or had a child period without wanting it (this happens if a pregnancy isn't detected or a sterilisation procedure fails the difference between 1-3 in my eyes is that in 2) the child is damaging the mother.

in 1) the child him/herself can say they were wronged and they could at least theoretically say that based on their impairment or based on the societal framework.

3) is like 2) but not based on disability. Interestingly if you sue for 3) you will like in USA be compensated for the cost of e.g. the sterilisation procedure but NOT for the cost this addittional child will cost you till he/her is 18. But in 2) you will get payments for the costs the kid cost you (very likely lifetime costs). The rational for not giving child related cost s to the mother in case 3) the non disabled child is that having a child is so great that you can't get reimbursed for it. but in 2) in the case of the disabled child that argument of 3) is not used because having a disabled child is truly not a good thing and so you the mother were harmed.

Beside that, there is case 4)

4) wrongful breech of warrenty means that a mother or child can sue because a bad embryo was used in the IVF procedure in the case preimplantation diagnostic is available. UK below opens possibility that child can sue related to preimplantation diagnostic

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Copyright G.A.T.z©2005 ES MATERIAL DE DIVULGACIÓN.  Agradecemos citar la fuente.
Última modificación: 09 de Marzo de 2007

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