RIGHTS OF THE UNBORN: WRONGFUL LIFE AND PRENATAL INJURY IN INDIA, NETHERLANDS AND GERMANY

 Riyan Paul Mathew, Law Student, NALSAR University of Law, Hyderabad

ABSTRACT

This paper analyses the rights conferred to the unborn in Germany, Netherlands and India by analysing the adjudication on wrongful life and prenatal injury cases in these jurisdictions. The analysis reveals striking differences in the adjudication on wrongful life, Germany, prioritizing principles of human dignity, strongly opposes such claims, a view echoed in India and most common law jurisdictions. Netherlands on the other hand adopts a more liberal, welfare based approach, extending a legal duty to the unborn. This conflict highlights the philosophical considerations involved in extending rights to the unborn and how they have been resolved across the world. Despite these variations on wrongful life, in prenatal injury there appears to be uniformity across all three jurisdictions. All three find prenatal injury to be an actionable tort which does not to the same extent invite philosophical considerations. These variations also draw forth the fundamental variations in judicial philosophy with Germany and India adopting a pragmatic approach, while Netherlands adopts an idealistic approach based on welfarist policies.

INTRODUCTION

Rights of the unborn child have been a deeply contentious issue in the realm of law and legal theory for well over a century. Such a child in the womb, or ‘envetresa mere’ poses a dilemma, on the one hand, it can grow into a separate person, but also its life is dependent on that of the mother. Nevertheless, the general position of law has been that the unborn child may be considered a legal entity, however, the point of contention is whether it may exercise rights in the same way in which they are exercised by a child that is born.

The doctrine ’Nasciturus pro iamnatohabetur, quotiens de commodis eius agitur’, meaning the unborn is deemed to have been born to the extent that its own benefits are concerned, has been reiterated in Indian courts in cases such as Majji Jhansi v. State of Telangana^[1]. Underthe Transfer of Property Act, 1882, section 13^[2] property can be transferred to an unborn person, therefore there is no legal restriction on owning property before birth.  However, these rights are subject to the child being born alive., unborn child is considered a legal entity contingent upon its birth. Sections 88-92 of the BNS^[3] deal with the recognition of the unborn child and injuries against it as a crime. The Hindu Succession Act, 1956^[4] also treats unborn children as valid heirs, who may be treated as full children, reflecting the status of the unborn in Indian law.

This topic however also causes great controversy for the legal questions it brings forth such as how must we balance the rights of the mother against those of the unborn? if rights of the unborn are enforced will we risk the practice of defensive medicine? Could recognising these rights open up a slippery slope of adjudication?

The multitude of views surrounding this topic has led to significant variations in the adjudication of the matter in different jurisdictions. This paper seeks to analyse and compare the adjudication on the rights of the unborn in India, Germany, and the Netherlands with specific attention to tort law. Primary focus will be on determining how the courts in these countries have dealt with wrongful life and prenatal injury claims. In doing so, this paper seeks to trace the evolution of how the rights of the unborn have been perceived and how they have changed in time.

Wrongful Life

A wrongful life claim is brought by a child, or on behalf of a child, against the defendant in order to claim that if not for the defendant’s negligence, the pregnancy could have been avoided, in effect claiming that the damage caused is birth itself^[5]. However, most courts around the world have found themselves in a difficult situation with such claims, torts are intended to provide compensation and restore victims to the position they were in prior to the injury. In a wrongful life claim, the damage being birth itself, the courts have struggled to determine the extent of the damage or whether or not there has been damage at all.

Further, another pragmatic concern emerges if courts were to allow such wrongful life claims, if they were to allow a child to sue doctors for the damage of birth, doctors may begin applying excessive caution and recommend abortions at slight variations. This is a public policy concern courts have remained cognizant of while deciding wrongful life matters.

The Netherlands and Germany however provide a striking contrast in their interpretation of such claims, as such, drawing a comparison between them would be a meaningful exercise in understanding the prevailing positions on such claims. To draw these distinctions, we will analyse a case from each of the jurisdictions in some detail, which would reflect the reasoning applied by the courts.

Wrongful life in Germany

In 1983, a case was filed in the German courts, claiming damages against the defendant (doctor) for failing to advise a pregnant woman properly when she had contracted rubella^[6].The disease affected the well-being of the child, and the child was born severely handicapped. The claim in front of the court was two-fold, firstly, the damages owed to the mother for violation of the doctor’s duty towards her, and the subsequent costs of raising a disabled child. Secondly, the damage suffered by the child due to being born handicapped.

The courts in this case held that though the mother may be compensated for the damages suffered in raising a disabled child, the disabled child may not claim damages. The issues raised and legal reasoning applied are described briefly below.

The German Federal court found foremost difficulty in allowing the claim due to the implication of assigning a lower value for disabled life. If a disabled child were to be compensated merely for existing with disability, the court finds that it would be making a judgement as to the value of life, which it refuses to do. The courts find that making such a judgement would be violative of the principles of human dignity enshrined in German law^[7].

The court thus found it philosophically impossible to constitute a damage in this scenario since the alternative to disabled birth would have been no birth at all, which the court believed could not be a damage by itself. In doing so, the court sided with a sentiment expressed by the English courts ‘Man, who knows nothing of death or nothingness, cannot possibly know whether that is so’^[8].

The court goes on to reason that allowing such a claim based on disability would create a slippery slope of claims, allowing children with such conditions to sue their parents, who, in spite of genetically adverse circumstances, decided to have a child. The court opined that human life must be taken as is, there must be no right not to be born at all, it found that such considerations were outside of the frameworks within which law operates.

Further, the court reasoned that the duty of the doctor was only to the mother and not to the child. The court rejects the notion that the interest of the contract was to protect the child citing the attitude of German laws on abortion wherein the primary interest is to protect the life of the mother, this means that though the mother may claim a damage for being uninformed on the risks of pregnancy, no duty exists toward the childtoprevent its birth, since abortion is a right of the mother, not the foetus.

The court recognised that barring such individuals from claiming damages would leave them in a severe disadvantage financially once they are out of their parents’ care, however, the court considers this to be an unfortunate outcome that must be accepted and the responsibility for the same falls on the community at large^[9].

 The German Federal Supreme Court (Bundesgerichtshof) firmly rejected wrongful life claims, and this position has since been entrenched in German jurisprudence as consistent with constitutional principles of human dignity.

Wrongful life in the Netherlands

In 2005, the Dutch supreme court in the case of Kelly Molenaar decided to allow a wrongful life claim for a child born with severe disability^[10]. The logic applied by the court in this case is a good representative of the alternative view on wrongful life claims.

In this case, the parents, who had already faced two miscarriages, had enquired specifically about a genetic predisposition that could harm their child. The defendant, knowing the risks, failed to advise them properly, leading to the birth of a severely disabled child due to chromosomal defects. The courts in this case awarded damages to the parents in a wrongful birth claim, holding that the defendant had been negligent in failing to inform them properly, thus circumventing their right to discontinue the pregnancy. However, the court went one step further and allowed Kelly to claim damages against the defendant, the legal reasoning applied by the courts in each of the issues contested is explained briefly below.

Firstly, on the matter of whether or not Kelly was owed a duty of care at all, the courts held that the contract between the parents and the defendant was for the care of the unborn child, this being the central object of the contract, the court held that the defendant also owed a duty to the child to perform certain prenatal diagnostic tests and to consult with a genetics expert under certain circumstances. The Dutch court extended the scope of the duty under contract to include the unborn child, construing her as a foreseeable beneficiary of the medical advice.

The court does however distinguish that the right to terminate the pregnancy or not still lies with the parents, there is no right to be aborted for the unborn child. The wrongful life claim is based on a legal duty owed by the medical practitioner to the (at that stage) unborn child, not on the child’s right to its own abortion.

On the matter of defensive medicine, the court reasoned that the standard doctors will be held to will be the same reasonable standards applied in medical negligence cases, as such there should be no increased fear of being sued in such matters.

In determining the extent of damage, the court, citing the Dutch civil code Article 6:97 ^[11](which states that the judge in cases where damage is not apparent, may estimate damages by methods which correspond most closely with the nature of the damage) reasoned that the comparison drawn need not be between existence and non existence, rather, the damages may be calculated on the basis of the extra costs of her education, care and emotional hurt due to the handicap.

Further, upon analysing the existence of a causal link between the defendant and Kelly, the courts held that though Kelly’s damage was due to chromosomal deficiencies and not due to the defendant’s acts, the defendant’s failure to inform  Kelly’s parents contributed to her suffering, thus constituting causation under article 6:98 of the Dutch Civil Code^[12]. She was thus entitled to compensation under article 6:106 ^[13]of the Civil Code.

The court also strongly rejected the notion that the judgement implies that the mere fact of disability denies someone a dignified life, it clarified that the damages were based not on Kelly simply being disabled, rather it was based on the duty owed towards her by the defendant, the compensation is not for being disabled, rather it is to ensure that the extra costs associated with her condition do not prevent her from leading a dignified life. This logic is similar to the one applied for wrongful birth claims, which allows parents to sue for the costs incurred in raising a child with disabilities, however, the court in this case extends the ambit of compensation, allowing the child also to claim compensation^[14].

Thus, upon comparison, we find that while the German courts approach the tort in a systematic manner, focusing on the establishment of a violation of duty and resultant damage, the Dutch court takes a more liberal approach, focusing on the damage suffered by the plaintiff and construing duty in such a manner that social welfare may be maximised. Indian Courts and most common law jurisdictions have echoed the German sentiment in such cases, refusing to accept wrongful life claims, this prevailing sentiment is  mentioned in the case of Shobha v. State (NCT of Delhi), 2003 ^[15]. However, wrongful birth and prenatal injury cases may be accepted after the Supreme Court ruling in IMA vs VP Shantha^[16].

Prenatal Injury

Prenatal injury cases are differentiated from wrongful life cases due to a simplified causal link. Unlike in the aforementioned cases where the injury was due to disease or genetic abnormalities, in these cases the injury is due to direct acts or omissions of defendant that injures the wellbeing of the child thus born. Similar to wrongful life claims, such claims have also attracted great controversy and have been the topic of much legal scholarship.

India

In India, the courts have recognised prenatal injuries as actionable injury, however, the cases dealing with the same have been very limited. In the Bhopal Gas Leak Disaster (Processing Of Claims) Act, 1985^[17], the legislature recognised the right to be compensated for injuries suffered even by unborn children resulting from the mother’s exposure to Methyl Isocyanate. This principle was also recognised by the supreme court in S. Said-Ud-Din v. Court of Welfare Commr. Bhopal Gas Victims Tribunal^[18]

Further, in the case of Dr. (Mrs.) Indu Sharma vs Indraprastha Apollo Hospital^[19], the petitioner’s daughter (now deceased) suffers from 95% disability and cerebral palsy due to the negligent behavior of the defendant. In this case, the court allowed for compensation amounting to 1Cr, though this compensation was aimed to alleviate the losses suffered by the parents, the court also kept the 12 years of suffering endured by the daughter as part of its considerations in awarding compensation.

Similar consideration of the unborn child is seen in National Insurance Co. Ltd. v. Kusuma ^[20]where the supreme court considers the death of unborn child to be a compensable loss.

Germany

In a 1952 case, the German courts recognised the rights of the unborn against being injured. In this case, the mother of the plaintiff received a blood transfusion from the defendant, however, the blood given was infected with syphilis^[21]. As a result, the plaintiff suffered injury, though they had not yet been born at the time of transfusion. The court opined that in this case, though the plaintiff was not yet born, they were suffering from injury caused by the negligence of the hospital and thus, in line with § 823 of the German Civil Code^[22], is entitled to some compensation.

Thus, German courts, though they do not recognize wrongful life lawsuits, do consider prenatal injuries valid grounds for legal action. This principle gained further validity when it was applied to provide compensation for the victims of the thalidomide scandal. The thousands of children born with defects due to exposure to the chemical were granted compensation, and this compensation has also recently been revised to ensure that the benefits extended to compensate for the injury are not rendered meaningless^[23]. 

Netherlands

In the Netherlands, after the 2005 Kelly case, the courts have established a direct duty toward the unborn child for the doctor. This duty is even more directly applicable in cases of prenatal injury as there are no moral implications, the child would, if not for the act of the defendant, have been born healthy and can therefore be compensated. Prenatal injuries are a standard tort accepted in Dutch courts.

This treatment of the unborn child is based on article 1:2 of the Dutch civil code^[24], which states ‘A child with which a woman is pregnant is considered already born whenever its interests so require. If it is stillborn, it is considered never to have existed’, Thus courts treat injuries to unborn children as valid category of tort but limit these actions to be contingent on birth.

Thus, we find that all three jurisdictions allow prenatal injuries to be actionable torts, at least in principle. Individual cases on the matter are still quite rare in Indian courts, however, German and Dutch courts have had greater multitude of similar legal issues. The consistency in judgements arises from the direct assignment of duty and the possibility of determining damage without resorting to philosophical considerations, as such even under the German and Indian jurisdictions which pursue a more restrained form of tort law, prenatal injuries are admitted.

Conclusion

The Rights of the unborn, as stated earlier, have been and continue to be a topic of great controversy. Matters such as wrongful birth and wrongful conception, which are studied in tandem with prenatal injury and wrongful life cases are far more widely accepted in the legal sphere since they relate not to the right of the unborn but to the rights of the parents.

Under tort law the rights of the unborn are conceptualised in varying manners based on jurisdiction, nevertheless the discussions around these issues are assimilable to the basis on which the tort system is founded, that is ‘ubi jus ibiremedium’ (where there is right, there is remedy) or ‘ubi remediumibi jus’ (where there is remedy, there is right). The German and Indian courts reflect the pragmatic view of the latter, while the Dutch court reflects the idealistic views of the former.

References

[1]Majji Jhansi v. State of Telangana, 2021 SCC OnLine TS 3701.

[2]Transfer of Property Act, No. 4 of 1882, § 13.

[3]Bharatiya Nyaya Sanhita, No. 45 of 2023, §§ 88-92.

[4]Hindu Succession Act, No. 30 of 1956, § 20.

[5]Carel J. J. M. Stolker, Wrongful Life: The Limits of Liability and Beyond, 43 The International and Comparative Law Quarterly 521 (1994).

[6]BGHZ 8, 243 (Ger.), translated in K. Lipstein, German Case, U. Texas, https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=626 [hereinafter Lues-decision].

[7]Following the Nazi regime, German courts have maintained strong distaste towards value of life judgements.

[8]Mckay vs Esses Area Health Authority [1982] QB 1166.

[9]Lues-decision, supra note 6 at 4.

[10] Hoge Raad [HR] [Supreme Court of the Netherlands], Mar. 18, 2005, ECLI:NL:HR:2005:AR5213 (Neth.)[hereinafter Kelly Molenaar Judgement].

[11]Art. 6:97 BW (BurgerlijkWetboek).

[12] Art. 6:98 BW (BurgerlijkWetboek).

[13] Art. 6:106 BW (BurgerlijkWetboek).

[14]Kelly Molenaar Judgement, supra note 7 at 5.

[15]Shobha v. State (NCT of Delhi), (2003) 69 DRJ 188.

[16]Indian Medical Assn. v. V.P. Shantha, (1995) 6 SCC 651.

[17] Bhopal Gas Leak Disaster (Processing Of Claims) Act,1985, No.21 of 1985.

[18]S. Said-Ud-Din v. Court of Welfare Commr. Bhopal Gas Victims Tribunal, (1997) 11 SCC 460.

[19] Indu Sharma (Dr.) v. Indraprastha Apollo Hospital, 2015 SCC OnLine NCDRC 1950.

[20] National Insurance Co. Ltd. v. Kusuma, (2011) 13 SCC 306.

[21] BGHZ 8, 243 (Ger.), translated in K. Lipstein, German Case, U. Texas, https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=626[hereinafter Blood Transfusion Case].

[22]§ 812 I  BGB(BürgerlichesGesetzbuch).

[23]Blood Transfusion Case, supra note 19 at 6.

[24]Art. 1:2 BW (BurgerlijkWetboek).