원하지 않은 임신으로 인한 子의 출생에 있어서 의사의 책임에 대한 유형론적 고찰

Abstract

Concerning the extent of damages about unwanted child, theories have approved damages inflicted on the parents such as the pregnant’s medical expenses, and no objection is raised about rearing expenses is not thinkable as damages because unwanted child is not damages in light of human’s sanctity and value. However, theories stand face to face with regard to whether rearing expenses can be separated. Up to now, authorities and theories that don’t approve rearing expenses as damage overwhelm, but in America and German decisions approving this, though the extents differ, increase. Only in the actions about wrongful life, because a handicapped himself can’t be treated as damage, it has been rarely approved of a claim for damages of the handicapped against doctors. But when rearing expenses is treated as damages, and it is approved of the claim of damages on unwanted child, the extent of compensation is not uniformly determined. There established no definite standard about whether it covers only expenses of re-operation for abortion and sterilization, or it covers delivery expenses and consolation money owing to the conception, plus rearing expenses unnecessary if the baby was not born is covered. Looking at several nations’ authorities, we can find that diverse types exist; authorities that offsets profit and loss after upholding the claim for damages of rearing expenses, authorities that uphold the claim for damages of rearing expenses according to motives, and in addition, authorities that completely deny the claim for damages, authorities that completely uphold the claim for damages, authorities that deny mental damages.