To Be or Not to Be Born? Civil Liability for Damage Resulting from Birth in a Comparative Context: Recent Polish and Irish Caselaw Concerning Wrongful Birth and Wrongful Conception

Magdalena Kancler


Most jurisdictions recognize compensatory claims for antenatal injuries, in cases where the wrongful act originated in events that occurred before the plaintiff’s birth. However, rapid development of modern medical sciences, including gestational and antenatal care, has also brought new challenges for the law of tort. Thus, the law must now secure remedies not only for those, who suffered damage in utero, causally linked to the others’ negligent conduct, but also for those who due to the others’ negligence were deprived of making a voluntary decision about their offspring’s existence, provided that they were legally entitled to do so. Accordingly, the courts could now acknowledge new types of tortious claims, distinct from antenatal injuries, namely: wrongful conception, birth and life.

The main objective of the present paper is, first of all, to compare these new types of claims and, secondly, to discuss some legal difficulties connected with their recognition by the courts of Poland (wrongful conception and wrongful birth) and Ireland (wrongful conception). The author will focus on a number of relatively recent judgments delivered by several Polish courts in the cases of Ms A as well as Mr and Mrs W. With reference to Ireland, she will offer an analysis of the judgment delivered by the Irish High Court in the case of Byrne v. Ryan.

It will be established that the courts in both countries, despite being faced with similar controversies surrounding the issues in question, relied on diverse concepts in order to determine the plaintiffs’ claims. Additionally, it will be demonstrated that the arguments used by the judges tend to reflect the line of reasoning previously applied in other common and civil law jurisdictions, where the problem of wrongful conception and wrongful birth (life) has been already assessed by both doctrine and jurisprudence.



Cite as: Magdalena Kancler, To Be or Not to Be Born? Civil Liability for Damage Resulting from Birth in a Comparative Context: Recent Polish and Irish Caselaw Concerning Wrongful Birth and Wrongful Conception, vol 13.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2009), <http://www.ejcl.org/133/art133-5.pdf>.

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