Wrongful Life Case Study (Cass. 2 ottobre 2012 n ) Prof. Avv. Bruno Tassone Docente di Principles of Civil Law LUISS Guido Carli

The Parties A pregnant woman asks her doctor to check whether his coming baby is in good health conditions, making clear that she would otherwise opt for abortion (the “Mother”). The doctor carries out only the “Tritest” diagnostic exam and ensures the Mother about the lack of malformations, so that she decides to keep the baby (the “Doctor”). When the baby comes to life he results to be down (the “Baby”): the said exam did not reveal the pathology, as only amniocentesis (never carried out) could have done it. Doctor alleges that the Baby cannot claim any damage because he has not the right to complain for a behavior that brought him to come to life.

Questions 1) Has the foetus a special, limited and/or temporary capacity, at least for the purposes of the protection of fundamental rights and, therefore, of tort law? 2) Is it possible to recognize a “right not to come to life if not in good health conditions”? 3) If so, how is it possible to recognize a right which exists only when violated (a the moment of the wrongful birth)? Is this right consistent with the power of the mother to abort under the conditions set forth by the law no. 194/1978?

Questions (II) 4) Could the foetus claim damages not as “holder of a right” but as “object of the protection”? 5) Could he do so pursuant to the “inter-subjective and non-chronological transmission of the effects of the wrong”, from the moment of his birth (see the case of the child who had father killed before his birth)? 6) Could the foetus be compensated for a future damage to his health, i.e. a damage which takes place only after the birth (see the case of the accident that precludes revenues in the future)? 7) Can the father and the brothers claim damages?