Wrongful birth and wrongful life actions in the light of the czech legal environment

The terms wrongful birth and wrongful life are used in the Czech legal environment - although not regulated by the legal system - in the context of the right to protection of personality and possible compensation for non-pecuniary damage. In this article, we will discuss these actions, their subtypes and the approach of Czech judicial practice to these types of actions.

General background

The Czech legal order does not explicitly regulate non-pecuniary damage in this way, which is related to certain procedural aspects that need to be outlined. The basic difference in the case of such actions is the personality of the claimant.

In general terms, it must be submitted that the claimant must, on the one hand, regard the event in question, as described in more detail below, as unintentional and, on the other hand, must have suffered material (e.g. the costs of bringing up the child) or non-material damage as a result of that event (e.g. observation of the child's handicap and fear for his or her development, interference with family life or freedom of decision, etc.).

The essence here is thus the liability relationship between the doctor or health service provider and the child's parents or the child himself, based on a contractual relationship which gives rise to clearly defined rights and obligations of the health service provider on the one hand and rights and obligations of the patient on the other.

Wrongful birth

In this case, the parent is the one who has standing to bring the action, and there are two subcategories, namely wrongful birth in the narrower sense and wrongful conception or wrongful pregnancy, under which the cases of unwanted conception and unwanted pregnancy are classified.

For a wrongful birth claim to exist, the following basic conditions must be met: (i) breach of a legal duty, (ii) the occurrence of damage for which someone would be liable, whether negligently or intentionally, and (iii) a causal link between the act and the consequence, i.e. between the wrongful act and the injury. One of the other circumstances is the legalisation of abortion in the legal environment.

Typically, this is the case when a woman is unsuccessfully sterilised on the basis of her express wish not to become pregnant (wrongful conception) and subsequently becomes pregnant despite the procedure. As a result, she suffers both material damage and non-material damage, as she incurs direct costs in connection with the pregnancy or the possible artificial interruption of the pregnancy and, as a rule, also suffers psychological damage.

Wrongful birth in the narrower sense, then, represents actions that relate only to the birth of the disabled child itself. Here, the unwanted condition consists of ignorance of the fact that the fetus suffers from certain defects and that a disabled child will be born. Here, the cause will be a misdiagnosis by a negligent prenatal physician leading to a violation of the parent's legally protected interest, namely, in private and family life. Crucially, in this case, the parents are deprived of the opportunity to make an informed decision as to whether to keep the diagnosed child or whether the woman will undergo an artificial termination of pregnancy, thereby interfering with their right to privacy and family life.

Wrongful life

In this case, it is the child herself who has standing to sue. The construction of this action is based on the fact that the wrongful act is the mere carrying and existence of the child, i.e. the failure to undergo an artificial interruption of pregnancy - the damage does not therefore arise primarily as a result of a breach of duty or a non lege artis procedure. The damage in the present action is the loss of the possibility of the child not being born at all, or the child's very existence.

This type of action is therefore almost exclusively brought by a disabled child who has suffered damage as a result of his or her birth and life, which may be both physical and psychological.

In practice, however, these actions tend not to be encountered, or are rejected by the European courts, mainly because judges are put in the position of having to assess the quality of life of the individual concerned. The plaintiff's argumentation is typically based on the fact that life with a disability is worse than no life at all, but this is a very difficult fact to prove and it is questionable how any proof would be conducted and whether it would be possible in the Czech legal environment to refer, for example, to the Methodology of the Supreme Court on compensation for non-pecuniary damage to health.

This type of action is also very controversial due to the fact that the acceptance of wrongful life actions and the subsequent compensation not only for birth but for the entire life of an individual with a certain disability also leads to social stigmatisation of disabled persons and compensation for disability would then distinguish between the life of a disabled person and the life of a healthy person. As a result, we could run counter to the UN Convention on the Rights of Persons with Disabilities, which guarantees these very persons equality that would be de facto denied by this compensation.

This type of action is then divided into 'wrongful unsatisfied life' and 'wrongful diminished life'.

In theoretical terms, then, the right to be born without disability is being shaped and it is a matter of social debate what form and shape this right should take.

The approach of the Czech justice system

This topic is still "in its infancy" in the Czech judiciary, as the domestic judiciary has not yet encountered it and thus lacks the supporting decisions that would establish a well-established practice or legal certainty. However, the Supreme Court has commented on this issue in its judgment of 16 May 2023, No. 25 Cdo 2202/2021, when it generally admitted wrongful birth actions.

It also addressed the implications of the admissibility of such actions in a general context, specifically referring, for example, to the argument of the opponents of such actions and that of negative value judgments about the child. This is that in these cases the existence of the child is equated with harm, when there is a general need to consider the existence of the child itself in a positive light, or that it cannot constitute harm. A contrary conclusion would certainly be contrary to the dignity of the child.

He also pointed to the possible proliferation of so-called defensive medicine, whereby doctors would be more likely to declare that a foetus was suffering from a defect with a high probability, thereby excluding their legal liability in the event of the manifestation of that probable defect. The consequence of this practice would then be to effectively isolate the medical profession in the field of obstetrics and prenatal diagnosis from claims for damages.

However, no specific cases involving wrongfulbirth actions have yet been addressed by the Supreme Court. However, several such cases have already appeared before district and county courts, and it is only a matter of time before the Supreme Court takes a closer look at this issue.

If you have any questions regarding health law or related issues, please do not hesitate to contact us. We would be happy to learn more about your case and provide you with appropriate legal assistance.

Kateřina Chaloupková collaborated on the article.