Civil Law – civil liability – compensation for ‘wrongful birth’
Liability for unlawful facts;
Right to compensation;
Duty to compensate;
RULING No. 55/16
2 of February of 2016
The Constitutional Court found no unconstitutionality in an interpretation of Civil Code norms regarding aspects (the general principle, the liability of parties that owe a duty or debt to others, and the presumption and evaluation of guilt) of the liability for illicit facts whereby, under the general terms governing contractual civil liability, those norms can be applied to a claim for compensation made by the parents of a child born with a congenital disability which, due to medical error, was not detected in a timely manner and about which the parents were not told in time, with the claim made in relation to the damages suffered because the parents were not told about the medical staff’s knowledge of the disability at a point when that information would have enabled the parents to potentially make or model choices available to them within the framework of the free exercise of their reproductive options.
The constitutional right to life is not affected by whether or not parents are compensated for damages resulting from the non-transmission of knowledge about elements that are important to the exercise of their reproductive options. In situations of this type, the award of compensation is neither an expression nor a denial of the protection afforded to the right to life. What was at stake here was the parents’ right to be the ones to determine their reproductive choices from among the universe of lawful possibilities available to them – a right that was injured by the appellants’ failure to provide them with adequate information that was contractually due to them. The right to compensation – for medical malpractice in this case – here lies solely within the framework of the reparation for damages caused by a failure to provide information that was contractually owed to the parents.
The Court emphasised that when awarding or not awarding someone a right to compensation has the effect of affirming, compressing or entirely eliminating that right, the decision to award or otherwise has implications for the substance of a right to which the Constitution affords its protection. It therefore took the view that when interpreted in such a way as to permit the compensation sought in this case, the norms before it were not in breach of the applicable constitutional precepts.
This concrete review case arose out of a request made by the parents of a minor for compensation for failure to fulfil a contractual responsibility to provide a result – a failure they alleged was due to negligence. A medical error during a prenatal ecographic diagnosis made it impossible for the parents to choose to terminate the pregnancy, because they were not in possession of information that was due to them. The question of constitutionality focused on the constitutional conformity of the compensatory protection granted to the minor’s parents as a result of a situation which the lower courts and the Supreme Court of Justice considered deserving of compensation for wrongful birth. The appellants against those earlier decisions alleged that a number of Civil Code norms on which they were based were unconstitutional when interpreted such as to make life with disability, and deprivation of the ability to choose to terminate a pregnancy, forms of injury that warrant compensation.
The Constitutional Court began by opining that both the original English ‘wrongful birth’ and ‘wrongful life’ and their Portuguese equivalents ‘nascimento indevido’ and ‘vida indevida’ were unfortunate choices of terminology, and that what was at stake here was a question of civil liability for compensation whose scope was much more limited than that suggested by the literal forcefulness of those expressions. The appellants argued that at issue were the constitutional norms regarding the rights to life and family planning. The Court rejected the view that this case was linked to a violation of the right to life, inasmuch as there was no injury to the legal asset protected by that particular constitutional norm. It also excluded the existence of an issue regarding the rights to family planning and conscious motherhood and fatherhood which, among other things, require the state to organise itself in such a way as to provide positive services (e.g. the provision of public information, or the creation of units to accompany and inform potential parents) that enable people to form the clarified will to procreate. The hypothesis of an initially desired pregnancy that might then have given rise to the option to terminate because the foetus was malformed has nothing to do with either the clarified and informed will to procreate, or the resources that should be placed at people’s disposal within the overall family planning framework. The Court said that what was at stake was the right to compensation and the corresponding obligation to compensate, which must be viewed with reference to the right whose disrespect has led to a demand for reparation in the form of compensation. The latter is not important as such, but as an expression of the protection granted or denied to a right protected by the Constitution.
The Court said that this conclusion was valid in the extracontractual field, and could be transposed to that of contractual liability in cases in which the violation of absolute rights arises within the context of unfulfilled contractual obligations. In the past the Court had already recognised that the right to compensation for damages is an imposition derived from the principle of a democratic state based on the rule of law, and that it also consubstantiates a specific aspect of the protection afforded to individual rights.
The Court recalled that:
I – Doctrine and case law have both used the term ‘action for wrongful birth’ to refer to suits in which parents of a child born with a congenital disability which was not detected or which they were not told about in a timely manner due to a medical error, claim reparation for damages resulting from the failure to inform them of that fact.
II – Qualifying a birth as “unwanted” “effectively constitutes a statement that characterises a past fact which has become an immutable given in the present, the compensatory approach to which is limited to monetary compensation.
III – There is no question here of any modification of an existential physical reality – everything takes place on an abstract level. This is an intellectual operation to establish the assumptions on whose basis the way in which the medical staff were duty-bound to behave will be determined.
IV – In the discussion on the viability of ‘wrongful birth’ suits, there is no validity in the type of argument that entails denying the existence of an obligation to compensate on the grounds of the recreation of a hypothetical situation which would presuppose the absence of any compensable injury because one could retrospectively say that the subject whom it is claimed has been injured would never have existed in that situation.
V – This construction can be called the ‘problem’ or ‘paradox of non-existence’, which initially contributed to courts refusing to award compensation in wrongful-birth claims, in the sense that if the medical staff had behaved in the legally required manner and the parents had been told about their gestating child’s disability in time, they would have opted for termination of the pregnancy and thus the suppression of the life in relation to which the compensation is (later) demanded.
VI – With reference to the inviolable nature of human life, a denial of the ability to construct a case for damages on this basis would have to be based on a refusal to see someone’s life as a possible source of injury.
The Court noted that these reservations had been progressively rejected by legal theorists and jurisprudence alike, as they gradually characterised the reality in question. The real issue here was simply the need to determine an amount or form of compensation for an unchangeable present injury, necessarily without reference to any framework of some kind of ‘natural reconstitution’. This position, which is more favourable to the viability of such suits, is underlain by the view that it is not justifiable to exclude medical malpractice from the compensatory protection available in such situations, which are seen as corresponding to obligations to secure a result, and that it would not be fair not to confer that protection on the supposed recipients of the information contained in this type of diagnosis.
One Justice dissented from the Ruling, essentially because she took the view that the preconditions for the Constitutional Court to hear this case in the first place were not met.
Ruling no. 363/15 (09-07-2015).