Abstract: The Austrian judge was asked whether a court can award damages for the birth of an unwanted child. In the case the attending physicians failed to notice severe malformations of the foetus, which resulted in the birth of a disabled person. In its judgement the court laid out some general principles with regard to “wrongful birth” and “wrongful life” claims. It decided to award compensation for the expenses for the upbringing and education of a disabled child, and thus, to a certain extent, allowed the wrongful birth claim of the parents. This conclusion could be reached by referring to the legality of abortion under Austrian law. If the physicians would have noticed the malformations, a legally available abortion could have prevented the unwanted birth. On the other hand the court held that the birth of a healthy but unwanted person can never be the ground for a damage claim. It further established the principle that a child’s personal claim for damages, based on his unwanted existence as a disabled person, should be rejected. In this context the judgement determines that, “every human being has to accept his life in the way it has been given to him by nature”, and that “no one has the right to see his life destroyed by others”.
The judgement is analysed in the following comment from the perspective of Belgian law. See also the following judgement of the French Cour de Cassation and the case notes to this subject.European Review of Private Law