PP991
Analítico de Periódico
PAPPONE, Michele
Illeciti derivanti da nascita : corti nazionali e ricorso al diritto comparato / Michele Pappone
Annuario di Diritto Comparato e di Studi Legislativi, v.7 (2016), p.401-416
DIREITO CIVIL, RESPONSABILIDADE CIVIL, DIREITO COMPARADO
This paper raises the question whether the birth of a child can be considered a “compensable” injury. Given that there are «fundamental» rights involved, the answer to this question inevitably interferes with extra-legal arguments. This papers begins with a brief introduction of the current statement of law in Italy as result of a recent case, followed by a careful comparative analysis of the domestic courts, both in common law systems and in the civil law systems, and how they adopt different legal solutions on these issues. However as discussed, there is a possibility of two different remedies that are dependent on whether the child was born healthy, but unwanted, or he was born unhealthy due to omitted or negligent prenatal diagnosis. In the first case, in particular, a so-called “unwanted pregnancy”, refers to the cases of failed sterilization or contraception procedures. Oppositely, in the second case, it refers to the cases of compensating rights for “unpair life instead of not being born” or for wrongful life due to congenital malformation. As a result, due to the complexity and relevance of the issue, jurisdictions differ with the tools they use. Some use comparative law to support their decisions, while others will sometimes use comparative law as a persuasive tool.