Inspired by reading a doctoral dissertation entitled“Liability for Damage Due to Unwanted Birth (Wrongful Birth) and Due to Unwanted Life (Wrongful Life)”,as well as by reviewing a master’s thesis on a similar topic, currently in preparation by my candidate Leonora Dauti Pollozhani, I pause to reflect on one of the most difficult and painful issues that contemporary law dares to address, an issue that, in our legal context and social reality, continues to remain distant and insufficiently discussed. This is not a topic that is easy to read, nor one that can be written about without sensitivity. It is a topic that confronts us with questions about life, responsibility, and the limits of human justice. It is precisely here that the thought emerged to write about cases in which, due to a “wrongful” birth, the law allows, or at least discusses allowing, the possibility for a claim to be brought by the child itself, even against its own parents. An idea that is unsettling, that challenges our most basic emotions, yet one that genuinely exists in legal debates and in the practice of certain legal systems from a comparative perspective. This is because every life problem, no matter how sensitive or personal, also requires a legal response.
I often begin writings of this nature by stating that we are faced with a challenge created by medicine itself and by the rapid advances of biomedical science. Today, the issue of family planning is increasingly in human hands, and when guided by often uncontrolled ambitions, it can come into conflict with natural laws. It is precisely here that bioethics and law intervene, as mechanisms aimed at setting limits and keeping these human ambitions under control. Contemporary biomedicine today enables us to choose the sex of a child, to intervene in their physical and intellectual capacities, to achieve the birth of a child from the genetic material of three individuals, the transplantation of a uterus from a deceased woman to a woman lacking one and the birth of a healthy child, the cryopreservation of genetic cells and their use many years later, conception and birth after the death of one or both parents, carrying and giving birth to a child for another person, and so on. All these and many other developments have significantly facilitated the process of family planning, especially for couples who cannot conceive through natural means. However, alongside this extraordinary progress, biomedicine and assisted reproduction methods have brought about a true revolution in reproductive rights and family law, while simultaneously opening deep legal, ethical, religious, moral, and philosophical debates.
Undoubtedly, advances in medicine have radically changed the way family planning is approached. Today, through contraception, sterilization, prenatal diagnostics, and genetic counseling, parents have more control over their reproductive decisions than ever before. This control, however, is not exercised independently, but is based on a relationship of trust and responsibility between the pregnant woman and healthcare professionals. In this context, following the advice and recommendations of the gynecologist, as well as respecting pregnancy monitoring protocols, constitutes an essential element not only for the proper course of pregnancy, but also for the real realization of individuals’ reproductive rights. Regular check-ups, prescribed examinations, and timely information are not matters of personal choice, but part of a professional standard that creates legal certainty for all parties involved. Gynecological protocols aim to ensure that every pregnant woman has access to complete and accurate information about the course of pregnancy and potential risks. Only on this basis can parents make informed decisions regarding the continuation or termination of pregnancy, within the limits provided by law. When these protocols are respected, the right to choose remains real and effective.
But what happens when these standards are not respected? What happens when medical recommendations are not followed, when check-ups are lacking, when information is not conveyed to parents in a timely and serious manner, or when the physician forgets or is not aware of their fundamental duty to inform? Even more concerning are cases where medical error produces direct consequences for the child. Who bears responsibility in such situations, and does a real mechanism for accountability exist? It is precisely in these circumstances that situations arise in which, due to professional error, parents lose the opportunity to decide over their reproductive life, while the consequences of this failure become irreversible. Not all parents are informed about how they should act during pregnancy. Not all parents seek information on Google, and even if they did, this is not and should not be their “job.” This form of “amateurism” on the part of parents is understandable and justifiable. But the same cannot and should not apply to the physician. From the healthcare professional, full knowledge of protocols, clear communication, and a high level of responsibility are expected, because it is precisely on this standard that the real exercise of reproductive rights and the protection of human dignity rest.
In contemporary law, these situations are known as "unwanted birth"wrongful birthand“wrongful life.”The terms do not question the value of human life, but serve to address a fundamental legal question: should a physician bear responsibility when, due to failure to comply with professional protocols, parents are deprived of the right to make decisions regarding the continuation or termination of pregnancy? When parents say: “Had we known, we would have chosen differently.” Cases of wrongful birth are usually related to situations such as: incorrectly performed sterilizations; failures of contraception due to inaccurate counseling; lack of prenatal diagnostics, or failure to inform about the risk of giving birth to a child with a serious illness that might have been detected during gynecological examinations. In these cases, parents do not complain about the existence of the child, but about the health, emotional, and social consequences they would not have experienced had the medical professional standard been respected. Courts in many European countries and in the United States have accepted that extraordinary expenses for raising and treating a child, especially when the child has disabilities, may constitute compensable damage. This approach is supported, among other things, by the existence of advanced healthcare and social systems, which make it possible to identify responsibility more clearly and distribute more fairly the burden arising from professional errors.
But what happens in situations where parents, even though informed about the consequences and risks, decide not to terminate the pregnancy? Or when the question becomes even more difficult and disturbing: can one complain about having been born?In such cases, the legal dilemma no longer concerns only the parents’ right to choose, but the very legal position of the child, who is born with severe physical or mental impairments and claims that their suffering is the result of a decision by adults or an institutional failure that could have been avoided. Here, the law confronts its most sensitive limits: how to balance respect for human life with the demand for responsibility, without turning existence itself into an object of damage. It is precisely in this context that contemporary law encounters the so-called cases "unwanted life" (“wrongful life.”or “wrongful life,” where the claim is brought in the name of the child itself, usually in situations where the child is born with severe impairments that could have been discovered and prevented through the lawful termination of pregnancy. These cases have sparked deep ethical and legal debates: can it be said that a life accompanied by severe suffering is legally less favorable than non-existence? Can the law qualify life itself as “damage” caused? Most legal systems hesitate to go that far. Nevertheless, some courts have accepted that the additional costs of treatment and care for a child with disabilities should be covered, without characterizing existence itself as damage. In our context, we do not yet go that far. Responsibility is often dispersed, relativized, or remains unidentified. Fault exists, but remains anonymous, without a name, without an address, and very often without concrete legal consequences.
The debate on wrongful birth and wrongful life is not a debate against life. On the contrary, it is a debate about human dignity, parental autonomy, and the professional responsibility of physicians. When a healthcare professional makes a mistake, the consequences are not only medical; they are life-altering, familial, and long-term; for the child, the parents, and society. In societies where these issues are still not clearly and consistently addressed by law, families often remain alone in facing severe economic, emotional, and social consequences. For this very reason, public discussion of these topics is essential; not to question the value of human life, but to seek justice, responsibility, and transparency in one of the most sensitive areas of human existence: the birth of a child.
In our positive legislation, for these and similar cases of medical error, the legal basis is found in the Law on Health Protection, the Law on Termination of Pregnancy, as well as in the rules of the law of obligations, particularly those governing liability for damage caused, whether material or non-material. These norms constitute the legal foundation for seeking accountability when the violation of professional obligations infringes reproductive rights, decision-making autonomy, and individual dignity. They do not aim to question the value of life, but to ensure that medical errors do not remain without responsibility and that the right to choose does not remain merely a principle on paper.
Finally, “The damage is not the birth of the child, but the deprivation of parents of the right to make an informed decision,” as most courts have emphasized through their rulings. And precisely where responsibility remains unnamed, suffering remains the burden of the family.
