| Project/Area Number |
14520041
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | HOKKAIDO UNIVERSITY |
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Principal Investigator |
TERAZAWA Koichi Hokkaido Univ., Grad.School of Med., Prof., 大学院・医学研究科, 教授 (40142715)
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| Co-Investigator(Kenkyū-buntansha) |
MARUYAMA Osamu Hokkaido Univ., Grad.School of Law., Prof., 法学部, 教授 (90125352)
SUDA Akio Hokkaido Univ., Grad.School of Law., Prof., 法学部, 教授 (80047985)
MINAKAMI Hisanori Hokkaido Univ., Grad.School of Med., Prof., 大学院・医学研究科, 教授 (40102256)
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| Project Period (FY) |
2002 – 2003
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| Project Status |
Completed (Fiscal Year 2003)
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| Budget Amount *help |
¥2,200,000 (Direct Cost: ¥2,200,000)
Fiscal Year 2003: ¥1,100,000 (Direct Cost: ¥1,100,000)
Fiscal Year 2002: ¥1,100,000 (Direct Cost: ¥1,100,000)
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| Keywords | fetal indication for abortion / social security / legal status |
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| Research Abstract |
Wrongful birth claim is generally defined as a claim by parents of children born alive with disability that a doctor's negligence lies in permitting pregnancy to continue to birth. There have been four cases as to congenital rubella syndrome and one case as to Down's syndrome held in Japan. The claims brought by the mothers were that, but for the negligence of the doctor in managing the pregnancy, the mother would have had a lawful abortion and the child would not have been born to suffer from injured condition. As we do not have the provision of the fetal indication for abortion in Japan, wrongful birth claim by parents is founded upon a breach of doctors' duty of advising of the probability of a disabled child. We compare the lawful nature of wrongful birth claims in Japan with those in the United States and U.K.. In the United States and U.K., the Court held that special damages are to be awarded in wrongful birth claim generally. Special damages are considered as the cost of treatment and special training of a handicapped child, so on.
The difference is due to whether there is a provision of fetal indication for abortion. In England, under the Human Fertilization and Embryology Act 1990, a doctor will not be guilty of a criminal offence in terminating a pregnancy if there is substantial risk that, if the child were born, it would suffer from physical or mental abnormalities, being seriously handicapped. We have become able to diagnose the abnormality of a fetus, but the law in Japan does not admit an induced abortion for the reason of fetal abnormality. We consider that we must amend the law or our interpretation of the law according to the progress of medical treatment in Japan.
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