The postnatal life of a child has always been a matter of curiosity. The surrounding imagination is close to what the treatise "Your Sacred Self" by an American philosopher, Wayne W. Dyer, described in a parable about twin babies arguing whether there is life after birth and what it could look like if it is there. Although the story has been used for religious purposes, it can be adapted to the expectant mother's inquiry of whether the conceived baby's life will be feasible after birth and what it would look like. Although it might be controversial, it seems very meaningful to say that it would be better not to exist than to damn on this earth. Indeed, no one would choose to suffer or see their loved one suffering from avoidable harm. The reason for recalling the story might still be unclear, but let me elucidate it. A recent study has claimed the existence of over 7,000 rare diseases, most of which are thought to be genetically transmitted and can be treated based on their unique genetic causes.[1] In other words, prenatal or antenatal diagnostics are necessary to satisfy this curiosity of expectant parents as they could detect the presence of harmful genetic mutations or teratogens incompatible with life or exposing disabilities in the child's development. Still, prenatal counselling is vital for a gravida, not only for the above reasons. Other aspects, such as economic, moral, psychological, or social concerns, can prompt prenatal diagnostics. Apart from their duty to offer prenatal tests, based on their results, health care providers, specifically obstetricians and gynecologists, are responsible for addressing the expectant parents' emotional or psychological worries, such as curiosity and joy and excitement, anxiety, and fear, through prenatal counselling.
Prenatal diagnostics are also the basis for expectant mothers to exercise their reproductive health-related decisions, whether they terminate their pregnancies or proceed with gestation under specific treatments. This gives rise to legal aspects of informed consent, confidentiality, and human rights concerns. Specifically, a woman's right to procreation and her freedom to choose the best family structure are more closely related to her right to reproductive autonomy, which may include the right to terminate a pregnancy if necessary. For that reason, expectant parents have the right to receive all relevant information about their pregnancy and make informed decisions. Thus, a health care provider must ensure that they understand the risks and benefits of any proposed treatments or procedures before obtaining their consent. As expectant parents have the right to privacy regarding their health information, the health care provider also has the duty to protect their confidentiality.[2] Any misconduct associated with prenatal diagnostics and counselling rationalises patient harm actionable for liability.
Although pre-conceptional and neonatal screening can help halt child mortality and ultimately contribute to the child's growth, it is not the concern of this study. The research's primary concern is the medical liability relating to prenatal diagnostics of genetic and teratological harm incompatible with life. It explores the legal aspects of prenatal diagnostics related to harmful genetic mutations and teratogens in Rwanda and Hungary. Notably, it is limited to the liabilities for related medical malpractice and negligence. Various doctrinal techniques have been employed to assess the incentive of multiple jurisdictions' approaches.
This work covers the following subjects: genetic and teratological risk of harm; prenatal diagnostics in Rwanda and Hungary; related medical malpractice; pecuniary and non-pecuniary damages; pregnancy termination; and medical liability approaches related to wrongful pregnancy and wrongful birth.
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The present study has applied critical, functional, and analytical methods to allow the research to compare both Hungarian and Rwandan schemes in the context of compensating the victims for malpractices and negligence resulting from prenatal diagnostics and counselling. Relevant case laws were explored and analyzed, as they exemplify the legal application in actual situations. In addition, the researcher employs books, journals, and other online repositories to investigate the subject matter and come up with a reliable conclusion. Various legal principles have also been explored to substantiate the discussion.
For the essence of the future life of expectant mothers and their children, people who intend to have a child would have access to genetic screening and counselling to avoid health risks leading to malformation, deformation, or incompatibility with life.[3] However, this does not preclude the diagnosis of newborns before the discharge of their mothers from the maternity wards. But what is the genetic or teratogenic risk of harm?
According to the National Cancer Institute, a gene is "the basic unit of heredity passed from parent to child. They contain information for making specific proteins that lead to the expression of a particular physical characteristic or trait, such as hair color or eye color, or to a particular function in a cell. Besides, the Human Genome Nomenclature Organization has defined a gene as "a DNA segment that contributes to phenotype/function".[4] Besides, genes might be a risk of harm. Noam J. Zohar, a philosophy researcher at Bar Ilan University, found evaluating genetic harm challenging. He did, however, lay out specific instruments that could be employed to assess the risk involved. Simply measuring specific genes' susceptibility to disease, illness, and early death could serve as a simple test for it.[5] The likelihood of adverse circumstances arising from an individual's genetic disposition in the future provides evidence of the genetic risk of harm.
Furthermore, the Embryo Project Encyclopedia defines a teratogen as "substances that may produce physical or functional defects in the human embryo or fetus after the pregnant woman is exposed to the substance".[6] According to Reed E. Pyeritz, there are three different categories of risks connected to teratologic harm: absolute risk, relative risk, and population-attributable risk. Absolute risk is the possibility that an expectant mother exposed to a specific substance will deliver an affected baby. The absolute risk is an important part to consider in prenatal counselling as it helps a medical professional to deal with the gravida's curiosity or anxiety about possible risks of congenital disabilities based on her exposure. The expectant mother is also informed of additional risks that could result in a miscarriage or risks related to the mistreatment of a pregnant mother. Additionally, relative risk measures how much more likely it is for a woman exposed to a particular substance to give birth to a baby with the condition than a woman who has not. The relative risk requires information about the studies' results, which health care professionals convert into absolute risk in prenatal counselling. Another crucial type of risk is the population-attributable risk, the proportion of adverse events resulting from medical procedures or treatment during pregnancy. Although it is irrelevant to prenatal counselling, the health care professional must have the related information to minimise the risks of teratogenic harm.[7]
It is crucial to emphasise that not all congenital malformations or deformations are fatal. However, there are severe genetic disorders that a newborn cannot sustain. An incompa- tibility with life may be identified in extreme circumstances that cannot be treated, although some infants may survive after surgery or other medical interventions.
While congenital anomalies are the leading cause of fetal loss, infant mortality, and childhood illness worldwide, the European Surveillance of Congenital Anomalies (EUROCAT) estimated that 2.5% of the 5 million births in the European Union each year are congenital malformations. This percentile interprets 125,000 fetuses and infants.[8] This indicates the significance of prenatal diagnostics and counselling. Indeed, the process of abnormal embryonic development leading to fetal loss or congenital malformations and deformations is teratogenesis. Therefore, teratogenesis is harmful and may lead to incompatibility with postnatal life. This process is the result of several factors, such as teratogen exposure during pregnancy, particularly during the organogenesis phase, genetic abnormalities, and other maternal health issues.[9] Teratogens
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encompass all substances that can induce congenital disabilities when ingested, inhaled, or absorbed by an expectant mother. When a fetus has a severe congenital abnormality that makes life outside the expectant mother's womb impossible, this situation is called incompatibility with life. The severity of the abnormality means that a baby will not survive after birth. Among other factors, genetic abnormalities, structural deformities, and metabolic disorders can cause incompatibility with life.
People who experience long-term mental or physical dis- abilities impose a heavy burden on their families and the health care systems.[10] Some of those disabilities can be linked to genetic and teratological conditions that can be identified through prenatal amniocentesis, blood testing, or ultrasonography.[11] Those medical screenings allow an obstetrician or gynecologist to provide prenatal counselling to a gravida for her decision-making regarding the termination of pregnancy or continuation of gestation. Thus, the health care professional has an ethical and legal obligation to give the expectant mother an accurate and correct prenatal diagnosis and counselling. Failure to do so could result in harm to both the expectant mother and the baby, subjecting those healthcare professionals to potential legal liability[12] for negligence or malpractice.[13]
The misdiagnosis, failure to diagnose, and delayed diagnosis constitute health care malpractice. Prenatal misdiagnosis occurs when a health care provider misinterprets test results or fails to order appropriate tests, leading to an incorrect diagnosis of a fetal abnormality.[14] Misdiagnosis can result in unnecessary medical interventions or the termination of a pregnancy. Besides, delayed diagnosis is another form of negligence related to prenatal diagnosis. This occurs when a health care provider fails to diagnose a fetal abnormality on time, harming the health of a mother or a child. Besides, a failure to diagnose occurs when a health care provider fails to diagnose a fetal abnormality. Such a failure may result in severe future harm, like heart malformations or the child's death.[15] Contrary to misdiagnosis and failure to diagnose, delayed diagnosis can lead to missed medical interventions or treatment opportunities that could have improved the outcomes for both mother and child.[16] In line with prenatal diagnostics, misdiagnosis, failure to diagnose, and delayed diagnosis constitute diagnostic errors that impose legal liability on health care providers, as they constitute a breach of the duty of care they owe their patients.
After prenatal diagnostics, another crucial health care duty is counselling. The health care professional provides prenatal counselling after screening for genetic and teratologic harm. Failing to provide adequate counselling and support to the expectant mother regarding her prenatal care options, such as available screening tests and informed consent before performing invasive diagnostic procedures or the termination of pregnancy, may lead to unanticipated harm to both mothers and fetuses. Such a failure imposes liability on the health care provider, should it result in child malformities that will incur extra costs in child upbringing.
The Government of Rwanda ratified several treaties that engage its obligations and commitments to ensure health-related rights, in line with regional and global agendas. For instance, it integrated the SDGs into its national development plans, such as the National Strategy for Transformation (NST1) and Vision 2050, as a blueprint for achieving health-related goals.[17] In this line, the government improved maternal and child health. It embraced antenatal care (ANC) as one of the strategies to reduce maternal morbidity and mortality nationwide.[18] The ANC is a health care service provided for expectant mothers. They significantly contribute to the national health care system by offering expectant mothers prenatal, postpartum, and ongoing medical treatment and support. ANC clinics have been an essential component in achieving those goals.[19]
Before examining the nature of prenatal diagnoses, it is essential to understand Rwanda's health care delivery system. The government dominates Rwanda's health care service delivery, as in many countries. This public health care system is subdivided into tertiary, secondary, and primary health care. Tertiary hospitals encompass five teaching and national referral hospitals. The secondary health care facilities comprise 42 district hospitals, while the primary health care system comprises 500 health centres, 1,700 health posts, and 58,000 Community Health Workers (CHWs).[20] Those health facili-
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ties are territorially distributed according to local government organs. Only teaching, tertiary, or provincial hospitals are considered referral hospitals, with various specialised departments that deal with highly complex health problems. However, residents can reach district hospitals in large numbers upon transfer from the health centres with community-based health insurance (CBHI). Thus, many people seek health services at the nearest health centres, which can transfer them to hospitals for complicated health problems. The CHWs only deal with simple health issues in the community, such as fever and malaria in the first stage of infection, before a patient goes to the nearby health post and health centres for further diagnosis.[21] Apart from those, there are two private general hospitals, 50 clinics and polyclinics, and 134 dispensaries.[22]
Despite the number of health facilities, prenatal diagnoses are performed at different levels. As part of the primary health care system, the government has established ANC clinics at the health centre level to deal with maternal conditions and reach pregnant women from low-income households. They offer various health care services, including regular check-ups, antenatal education, screening for infections and diseases, and nutrition and healthy behaviours counselling.[23] Even though the ANC clinics also provide immunisations against tetanus and other preventable diseases, as well as access to family planning services,[24] they mainly provide prenatal diagnosis and counselling. However, their prenatal diagnostics and counselling services are minimal due to various factors, including limited training, resources, and health care infrastructure.[25] Consequently, their maternal service delivery is prone to malpractice, which adversely affects the health of both gravidas and fetuses.
Although the government intends to enhance various specialised health services in district hospitals, including obstetrics and gynecology, by training specialist nurses, midwives, and allied health professionals,[26] the shortage continues to cause patient harm, including harm to the health of pregnant women and fetuses. Besides, tertiary healthcare is provided at high levels in public and private hospitals in Rwanda. They are the only health facilities capable of detecting genetic and teratological harm. Regrettably, there is a series of court petitions against those hospitals for negligence in assisting deliveries or failing to support expectant mothers, which resulted in the fetal loss or death of a mother or newborn.
One of the primary causes of negligence and malpractice related to prenatal diagnosis in Rwanda is the lack of adequate training and resources for health care providers.[27] Many health care workers have limited knowledge and skills in prenatal diagnosis, which can lead to misdiagnosis, delayed diagnosis, or failure to detect potential health problems in fetuses. Additionally, some health care facilities in Rwanda lack the necessary equipment and infrastructure to perform accurate prenatal diagnoses, leading to poor quality of prenatal care.[28] For example, ANC clinics are located in health centres, whose staff are mainly nurses and midwives, with insufficient training and equipment to handle complex cases. For that reason, expectant mothers may not receive appropriate care due to limited training or resources among health care providers, or to other systemic issues, such as unnecessary health bureaucracy. Still, the unnecessary health bureaucracy can result in medical negligence and malpractice related to prenatal diagnosis in Rwanda.
Despite the government's concerted effort to improve access to health care services for its citizens, which has resulted in a significant increase in the number of health care facilities and workers across the country, some challenges remain, including unnecessary health care bureaucracy. Excessive bureaucracy persists at various levels of the health care system, resulting in adverse events.[29] It often leads to delays in service delivery, which can have severe consequences for patients who need urgent medical attention, including expectant mothers. Some problematic bureaucratic processes include paper-based health record-keeping and time-consuming, error-prone data management systems, complicated referral procedures, unnecessary bureaucracy, and a lack of coordination between healthcare facilities.
Due to several factors, including ignorance, the long distance between their homes and health centres, cultural beliefs and practices, and poverty, some women do not reach ANC clinics seeking prenatal care until late in their pregnancy or may not attend all recommended appointments. This can result in missed opportunities for early detection and treatment of potential health problems, which pose risks to maternal and fetal health, and may require referral to the hospital for advanced health services. To that end, a pregnant woman is prone to the problems above that may lead to maternal death, fetal loss, or child defect.
Therefore, as primary health care services are near the local community, whose majority of members face financial constraints, antenatal care clinics have played a critical role in health service delivery in Rwanda, particularly for expectant
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mothers.[30] However, those clinics cannot diagnose genetic and teratological harm. Unlike ANC clinics, district hospitals can screen for some teratogenic factors and provide prenatal counselling. Tertiary health care is accessible at teaching or referral hospitals that offer the highest-quality health care services, including genetic and teratological detection with prenatal counselling. However, those services are generally not covered under health insurance policies. In contrast, the primary and secondary health care systems face various problems, including understaffing, limited training, resources, and technology infrastructure, as well as unnecessary health bureaucracy, creating an environment susceptible to patient harm. Nevertheless, some medical malpractice and negligence cases have been related to maternal misdiagnosis and failure to assist in childbirth in tertiary health care.[31], [32]
Prenatal diagnosis and counselling have been essential components of obstetric care in Hungary, as in other European countries. The first registry of genetic malformities started in 1962, and it was compulsory to conduct an autopsy for any infant and stillborn mortality in 1984.[33] Since then, the practice has evolved. Prenatal diagnosis of the expectant mother is a common practice in Hungary, and prenatal counselling is provided to the expectant parents.[34] Like the Rwandan situation, prenatal screening is performed from the first trimester of gestation. These tests generally include ultrasound scans, blood tests, and non-invasive prenatal testing (NIPT). In addition, other diagnostic tests, such as amniocentesis and chorionic villus sampling (CVS), may be offered when a higher risk of genetic disorders is identified. However, the country has embarked on developing genomic medicine, which helps to facilitate 'genomic sequencing'[35] and clinical diagnostic services with accuracy.[36] Thus, reproductive health medicine in Hungary is more advanced than in Rwanda. For example, non-invasive prenatal testing (NIPT), such as the Panorama test,[37] can be applied to detect genetic abnormalities like common chromosomal abnormalities contributing to fetal loss and infant mortality.[38]
Besides, counselling is an integral part of the prenatal diagnosis process in Hungary, in which expectant parents are provided with detailed information about available screening and diagnostic tests, as well as the potential risks and benefits of each option.[39] They are also given guidance on interpreting the results and making informed decisions about their pregnancy.[40] Prenatal counselling is typically provided by obstetricians, genetic counsellors, or other healthcare professionals with specialised training in this area. The counselling sessions may be conducted in person or over the phone,[41] depending on the needs and preferences of the expectant parents.
Despite that remarkable work in the Hungarian health sector, the OECD and the European Observatory on Health Systems and Policies released the 2021 Country Health Profile, indicating that although the Hungarian government's contribution to the health care system has lately increased, it still needs to be improved to reach the EU average.[42] There is also a lack of physicians and nurses, and the parasolvency (compulsory gratuity) tradition has long caused a divide between the public and private health care systems.[43] Another unfavourable working environment, with adverse effects on patients, has been brought about by the ban on adopting this gratuity since 2020.[44] As a result, the criminalisation of gratuity has widened the disparity between the rich and the poor by encouraging more people to seek medical treatment at private facilities.[45] Those concerns are far-reaching and may impact expectant mothers who seek prenatal care. For example, prenatal care in Hungary is covered by the national health insurance system. Yet, various researchers have claimed that expectant mothers opt for informal payments to avoid disrespectful maternal care under what is known as the "chosen doctor model." The recent survey by K-Monitor and EMMA Association estimated that 68% of deliveries paid "gratitude money," of which 15% was under request.[46] The rationale for the "chosen doctor model" is the reported mistreatment of
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women by public health care providers engaging in unnecessary obstetric procedures, stigma and discrimination, and physical, sexual, and verbal abuse.[47] Apart from this structural corruption, which undermines the Hungarian health care system, it is a form of "cost-benefit" in health care that creates an imbalance in maternal care service delivery. This parasolvency can influence either health providers' or women's autonomy in making decisions regarding the needed treatment or procedure, ultimately resulting in an adverse event.
Prenatal diagnosis and counselling are critical in ensuring the health and well-being of both mother and baby in Hungary. Health care providers can use advanced medical technology to detect potential genetic or teratogenic harm incompatible with life and to inform expectant parents in making informed decisions. Among those decisions is an induced abortion, which has been possible since the 1956 Abortion Law.[48] Thus, a pregnancy can be terminated up to the 24th week of gestation if the diagnosis identifies severe fetal abnormalities. Health care providers must also ensure that pregnancies proceed smoothly and that necessary interventions are implemented appropriately. Failure to do so can expose the health provider and laboratories to liability.
In the same case of Rwanda, medical professionals and laboratories in Hungary can be held liable if their prenatal diagnosis and counselling lead to fetal loss or congenital abnormalities.[49] For example, miscarriage and stillbirth following an amniocentesis test, any other invasive procedure, or erroneous laboratory interpretation can render an involved health care provider or laboratory legally liable. In addition, some research identified various issues related to prenatal diagnostics and counselling that create an environment for malpractice and negligence, such as excessive obstetric procedures, discriminatory treatment, lack of adequate communication, and non-consensual medical interventions.[50]
Suppose parents have taken steps to prevent pregnancy, such as tubal ligation or vasectomy. In that case, it stands to reason that they do not want to conceive again and, as a result, have no children, whether healthy or not, as was the case in Thake v Maurice and McFarlane v. Tayside Health Board. Imagine a lady had a tubal ligation, but it was improperly done and failed. She then discovered she was pregnant, despite not being warned about the likelihood of failure during surgery. Although the woman sought antenatal diagnosis and counselling, she promptly demanded to terminate the pregnancy. When this request was denied, the woman subsequently gave birth. Is that enough for the child's mother to file a wrongful pregnancy claim against a health care provider who conducted a tubal ligation if she gives birth to a healthy child? What about wrongful birth claims in case the child was born with abnormalities?
Any pregnancy or birth that comes from negligence associated with those impugned health care services (tubal ligation and prenatal diagnosis) constitutes harm. It is likely to subject the responsible party to liability. Although the above two claims are different, the same principle sensibly applies.[51] In those events, compensatory and non-compensatory damages may apply.
Compensatory damages are the money the court grants to the injured party to compensate for the suffered harm (damnum) and other incurred losses resulting from another party's negligence or misconduct. The compensatory damage may be pecuniary or non-pecuniary. They are pecuniary, actual, or specific when they entail financial costs and are thus easy to calculate based on actual expenses. They are non-pecuniary or general when quantifying the suffered harm is complex and rests upon the court's discretion. However, some jurisdictions have capped the non-pecuniary damages. Besides, the court can also impose non-compensatory damages on the plaintiff if the defendant's harm results from the defendant's gross negligence. In that case, they are called punitive or exemplary damages.
As mentioned earlier, pecuniary damages, also known as economic damages, entail compensation for verifiable financial costs-for example, medical expenses, rehabilitation costs, wage loss, litigation fees, or property damage. In medical malpractice, the court awards pecuniary damages (damnum emergens) upon finding the health provider's misconduct caused the patient's monetary loss. Without limitation, all the evidenced financial losses are compensable both in Rwanda and Hungary.
Some medical treatments and procedures can cause various physical and psychological harm to patients. These physical or emotional issues reduce the human capacity to fully enjoy the right to life as they jeopardise human integrity and dignity. For instance, phantom limb pain-traumatic postamputation pain-occurs after the amputation of a leg. If not
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well rehabilitated, this harm exacerbates the disease's consequences and interferes with the victim's psychosocial life.[52] If this bodily or mental pain and anguish were avoidable, an injured party could bring a claim against the health care provider for medical malpractice or negligence.
The patient's temporal or permanent physical and emotional harm constitutes non-compensatory damages. Non-pecuniary damages refer to a person's loss of life's pleasure after an injury. Among others, non-pecuniary damages can encompass 'loss of consortium,' disfigurement, and post-traumatic stress disorder (PTSD). The injuries attributed to non-pecuniary damages are manifested mainly by fear, isolation, loss of trust, anxiety, humiliation, long-lasting medical care, or other emotional trauma.[53] Those damages may impair the victim's capacity to interact with others, take independent decisions and realise them, and exercise hobbies contrary to the previous life status. In other words, the non-pecuniary damages interfere with the essence and quality of daily life. Contrary to non-pecuniary injury compensability in Rwanda and Hungary, it is subject to legal limitations (caps) in several jurisdictions.
Additionally, other damages imposable against the clumsy health provider are punitive damages. In a medical malpractice case, the court not only reimburses the patient for monetary losses. Instead, if an injury results from gross negligence or intentional misconduct, the court can award punitive damages, also known as exemplary damages. Contrary to compensatory damages, whose aim is to reimburse the plaintiff's incurred loss, punitive damages' purpose is to punish the defendant's intentional misconduct that led to the plaintiff's harm.[54] The court can award punitive damages if the health care provider's willful misconduct has caused patient harm, which may also apply to medical malpractice or negligence claims involving prenatal diagnostics. Accordingly, punitive damages are also capped in some jurisdictions. For example, in the United States, punitive damages are capped at four times the compensatory damages.[55]
When a child is born with genetic or teratologic harm, the parents may be entitled to pecuniary and non-pecuniary damages. In that context, pecuniary damages refer to the monetary losses incurred by the parents as a result of their child's defect. In contrast, non-pecuniary injury refers to the emotional and psychological harm that those parents suffer. Pecuniary damage may include incurred medical expenditures and other expenses related to ongoing care and treatment for the child, such as treatment, rehabilitation, and special education. In addition, if they are forced to take time off work to care for their child, parents may be entitled to compensation for lost income. However, damages for birth with genetic or teratological harm have been challenging in various jurisdictions.
However, claims for damages have not always been for child defects. Instead, parents have been claiming unwanted pregnancy or childbirth if it can be proven that they resulted from the malpractice or negligence of the health care provider involved in prenatal diagnosis. In that case, the court can determine non-pecuniary or moral damages to compensate for the suffered harm. Contrary to wrongful birth, where a child who severely suffers a wrongful life resulting from prenatal diagnostic error takes action against the negligent health provider, parents can petition the health care provider for an unwanted pregnancy, childbirth, or child defect. Martin Hogg has classified medical malpractice claims related to prenatal genetic or teratological misdiagnosis into two components, discussed below.[56]
The first category entails two possible claims for damages. The wrongful conception claim is one of the viable approaches in this category, while the wrongful birth claim is another. Under this claim, the parents may institute a claim for damages proving that medical malpractice or negligence resulted in an unwanted pregnancy. However, it subsequently led to a healthy birth.[57] The court can award damages for the loss of income (lucrum cessans) an expectant mother has incurred during the gestation period, including medical costs during pregnancy and childbirth. Those damages can also be granted due to 'derivative or consequential economic loss' other than economic loss if physical harm from the gravida's pregnancy was provable. This is the case in Scotland, England, and Wales. However, despite the circumstances, giving birth to a healthy child is not considered detrimental. Therefore, no claim would be instituted, although the pregnancy was not intended. In addition, the parents can file a claim when the child is born with the defect. In both cases, the expectant mother testified that had adequate prenatal information been provided, she would have opted for termination of pregnancy. Thus, she was denied the right to terminate her pregnancy due to a lack of necessary information. Therefore, as the health care provider fails to deliver prenatal information, the parents may file a compensation claim for unwanted pregnancy and childbearing until adulthood.[58] Several jurisdictions, including Belgium, the Czech Republic, Germany, Italy, the Netherlands, Poland, Spain, and Switzerland, permit the assertion of those damages. However, this has been successful only sometimes in other jurisdictions. In Hungary, pecuniary damages claims are not permissibly compensable in respect of healthy children
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due to societal values, which do not see a child as a source of harm but instead impose the parental duty of support.
The second category of compensation the parents can claim relates to the harm associated with the congenital disability or the birth itself that would have been avoided had they known the risk of malformation or deformation before getting ready for conception or during the gestation period. This claim seeks to recover the additional cost of raising a child with a disability. i.e., Although the parents desired a child, they did not want one with a disability.
Under Rwandan Law, the plaintiff may claim pecuniary damages for the loss incurred upon presenting evidence. The primary purpose of monetary damages is to compensate actual economic loss (damnum emergens) that could be computed, such as medical bills, loss of salary, loss of property, or other material things. Besides, the court can award moral damages for causing a non-pecuniary or extrapatrimonial loss. In this case, the court can grant moral damages if the plaintiff can prove the pain and suffering experienced or being experienced. For example, the court granted moral damages in the NYIRABATESI Laurence v. King Faisal Hospital case. In that case, a general practitioner employed by King Faisal Hospital assisted in Kamatesi's labour, resulting in patient harm.
NYIRABATESI is a woman who was pregnant during the time she went to King Faisal Hospital on 18 November 2008 for childbirth. Upon her arrival, she notified the hospital of her urgency in the morning (9.00 AM), but the hospital ignored her until the evening (20.00). When the hospital began assisting her, it assigned Dr. NDAGIJE Félix, a general practitioner. At the same time, she was initially followed by a gynecologist whose expertise would help since she had previously given birth under c-section (cesarean).[59] The hospital's ignorance of that patient's medical history led to the mother's pecuniary and non-pecuniary loss as she incurred medical expenses after hospital discharge. She experienced pain and suffering, followed by losing an opportunity to give birth after the doctor cut her fallopian tubes. She also endured iatrogenesis of the Vesicovaginal Fistula (VVF) and deficits in the quadriceps.[60] The Rwandan Court of Appeal, in its judgment of 19 July 2019, where the plaintiff, NYIRABATESI Laurence, sought reparation for financial loss (damnum emergens) and the seized opportunity (lucrum cessans). The court granted the plaintiff pecuniary damages for the proven financial loss incurred, including medical bills and the expense of judicial proceedings, after ascertaining the hospital's breach of duty of care linked to the harm suffered. In addition, the court also granted moral damages or non-pecuniary damages for the endured psychological and physical injury, including the pain and suffering from VVF and deficits in the quadriceps, humiliation, loss of consortium, and loss of the chance to give birth again.
Furthermore, Rwandan courts are likely to award non-pecuniary damages for medical liability concerning prenatal diagnostics in the future. Although the Kamatesi v. King Faisal Hospital case is not exclusively for prenatal diagnostics, it proves that non-pecuniary damages are compensable in Rwanda. In its 21 April 2017 appellate jurisdiction decision in a civil matter, the High Court of Rwanda awarded non-pecuniary damages of RWF 50,000,000 on the merits. Mrs. Kamatesi Jovia is a mother who went to King Faisal Hospital (KFH) for labour and experienced delayed treatment and misuse of medication to aid in the delivery. Such a delay and Cytotec misuse caused extreme uterine contraction and rupture, leading to the baby shifting into her abdomen and subsequently dying of severe hypoxia. Besides, Mrs. Kamatesi experienced surgery, which took off her right fallopian tube and ovary, as per a report by Dr. John Muganda, who performed that surgical operation. Thus, Mrs. Kamatesi endured pain and suffering, losing her baby, her quality of life, and her permanent disability.[61]
Based on the instances above, it is reasonable to assume that any misconduct or carelessness on the part of the health care professional about prenatal diagnostics and counselling in Rwanda may give rise to legal recourse if it leads to a spontaneous miscarriage, a stillbirth, child mortality, child malformity and deformity, or progression of disability in the mother. Indeed, the courts can grant pecuniary and non-pecuniary damages based on the merits; after ascertaining the fulfilment of the required conditions, including the duty of care existing between the litigants, the breach of that duty, the injury, and the causal link between the violation and the injury as per the law of negligence. Besides, although the research does not show anything about nominal damages in the Rwandan jurisprudence, there is no hindrance for the court in awarding nominal damages to establish the wrongful conduct of the health care provider if the plaintiff has proven that the latter's misconduct or negligence has infringed their rights, although no loss is endured. The nominal damages are always given in the form of a small amount of money, contrary to the punitive or exemplary damages discussed in the following paragraph.
Likely, Rwandan civil courts are not interested in determining punitive or exemplary damages. They are neither provided for nor prohibited by any regulation. However, these damages could generally be statutory or undetermined, leaving the judges' discretion in their determination. These are damages also given to the plaintiff in addition to compensatory damages in the presence of gross or overwhelming negligence. However, as the rationale for punitive damages is mainly deterrence and prevention, Rwandan courts tend to treat them as moral damages by emphasizing their purpose and severity. Thus, although the determination of moral damages lies in the court's discretion, an awarded amount of money for moral damages goes proportionally with the degree and sensitivity of the defendant's negligence. By doing so, the court also avoids unjust enrichment
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while determining the appropriate amount to be awarded. The absence of punitive damages in legal texts and the difficulty of determining moral damages without clear standards could be addressed through legislation. Yet, the court decision on punitive damages would take into consideration the rights of the injured party, the degree of responsibility, the level of malpractice or negligence, existing societal values, the relationship between the parties before the injury, the financial situation of the tortfeasor and the victim, as well as the other circumstances surrounding the case in question. Therefore, punitive damages are not consistently awarded; they may be determined on a case-by-case basis.
Under the Hungarian judicial practice, pecuniary compensation may be awarded for the total cost of raising a child born with a genetic or teratological abnormality that would have been avoided had the expectant parents been fully informed about those risks. Therefore, the twofold component of diagnostics and counselling imposes a duty of care on a health care professional towards the expectant mother, in addition to the prediction and prognosis of genetic or teratologic harm to the fetus or the expectant mother. The scope of this duty comprises diagnosis, interpretation, genetic screening, providing test results to patients, and treatment. As a result, violating one or more responsibilities exposes the healthcare provider to liability and, consequently, pecuniary damages.
As discussed earlier in this work, parents may take legal action against the health care provider with either of two types of claims concerning genetic or teratological harm suffered. One is based on an unplanned pregnancy and, therefore, an unwanted healthy or unhealthy child, while the other is based on having a safe pregnancy and a healthy child, which was the parents' wish, although having a disabled child was not. Thus, if they had complete information about such a risk, they should have opted for pregnancy termination, guaranteed by Hungarian law. This is the same as "failure to diagnose" and "erroneous interpretation", leading to fetal loss, childbirth with malformation, or child mortality. Both claims are treated identically regarding the arising costs under the Hungarian legal framework. However, there has been a plurality of court practice regarding the award of the total cost of bringing up a child.[62]
In cases where the parents have opted for claims for additional costs of child upbringing, the Hungarian courts have been awarding them upon the production of evidence. The additional costs of rearing a child are calculated proportionately to the cost of raising a healthy child. The cost is borne partly by the parents and partly by Social Security.
Contrary to the claims for additional costs of bringing up a child, parents can opt for the total cost of raising an unwanted but healthy child or a child with unwanted disabilities if the conditions of awarding damages are met. These claims have been subject to public policy due to their sensitivity. The main issue arises from unwanted pregnancy and "unwanted birth", "wrongful birth", or "unwanted child". Despite their inherent malformation or deformation, "unwanted child" might be inappropriate terminology because every child is a human being with dignity and, therefore, valuable in society. It would, however, not sound absurd to ask for total pecuniary compensation for the child into existence, be it healthy or unhealthy, resulting from the health care provider's malpractice or negligence. This practice has been recently adopted by the Civil Law Division of the Regional High Court of Appeal (RHCA) of Szeged. Thus, it may award pecuniary damages in relation to the cost of bringing up a child by subtracting the higher costs of raising a child with disabilities from the lower costs of the desired healthy child.[63] However, this brings two controversial dimensions, one of which has been consi- dered demeaning the role of parenthood in society or jeopard- ising societal values. The second one is related to what Professor József Benke contextualised as an exacerbation of the problem of the shrinking health care institutions' budgets being unable to compensate for those damages.
The claims for wrongful pregnancy and wrongful birth have been feasible. The McFarlane v. Tayside Health Board case is the most famous Scottish case regarding an unwanted child, bringing controversy. Mr. and Mrs. McFarlane were partners with four children who decided not to have any more. For that reason, Mr. McFarlane underwent a vasectomy operation on 16 October 1989 at a hospital under the control of the Tayside Health Board. Later in January and February 1990, the semen analysis was conducted, and in March, the consultant surgeon informed Mr McFarlane that the semen was negative and may dispense with contraceptives. The partners opted for the advice, but in September 1991, Mrs McFarlane became pregnant and gave birth to Catherine on 6 May 1992. Mr. and Mrs. McFarlane took action against the Tayside Health Board in delicts, claiming a sum of £10,000 for having endured pain, suffering, and distress resulting from the unwanted pregnancy. Besides, they also claimed a sum of £100,000 for raising Catherine, resulting from the vasectomy operation failure. For the cost of raising Catherine, the court of first instance rejected the claim because the healthy baby's birth from a normal, healthy pregnancy could not be regarded as an injury compensable. Thus, being a parent is an immeasurable privilege in terms of money. Therefore, the Lord refused to balance the child's life with the patrimonial loss. Instead, it wholly compensated the parents for any expenses incurred. However, the Inner House of the Court of Session rejected that reasoning and found damages awardable on conventional principles, finding that the child was not a sufficient blessing to override the financial considerations.
Besides, in Emeh v. Kensington and Chelsea and Westminster Area Health Authority, the court found the 'damages for pain and suffering and maintaining the child' compensable since the duty of care which was breached could be established. However, the court stated that when damage involves the creation of human life, it raises moral and ethical concerns, which positions judges in a certain degree of uncertainty, for which Lord Hope called for further research. Moreover, in Cattanach
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v. Melchior, the Australian High Court diverged from the position of the United Kingdom and Canada.[64] The costs of raising a child were awarded following an unsuccessful tubal ligation performed by an obstetrician and gynecologist, Dr. Stephen Cattanach.[65]
Pecuniary and non-pecuniary damages may be awarded in Hungary. However, the courts' practice concerning the total cost of raising a child is contentious and has not been uniform. The controversy of awarding the child-raising costs for a child born out of health care providers' negligence is not only in Hungary. For example, in the US, courts in some states, including Wisconsin and New Mexico, may award those damages, whereas courts in other states may take a different view based on public policy. However, various states in the US have capped non-pecuniary damages, including California, Massachusetts, New Mexico, Virginia, and Wisconsin, to mention a few.[66]
Besides, Hungarian tort law does not provide punitive damages.[67] It is an issue of legal positivism. Thus, legislators and legal theorists have not yet incorporated it into the Hungarian private law system. The primary reasons include the character of those damages and the concept of unjust enrichment. Although they could not compromise the delictual liability in Hungarian private law, punitive damages have been understood as unjust enrichment. In principle, it is void for the victim to benefit from their loss under tort law. Another issue is the nature of those damages, which are criminal[68] when applied in private law. In other words, it would be an unnecessary marriage of two distinct fields of law. Nevertheless, awarding punitive damages could not conflict with any Hungarian rule if their essence is prevention and deterrence. For that reason, the court is not hindered from awarding punitive or exemplary damages to a victim of the clumsy health care provider whose misconduct and negligence constitute gross negligence.
Imagine an engineer commanding a sperm-injecting device using a wireless controller (Sony PlayStation 5 controller) to fertilise a human egg. This is what New Hope Fertility Center has done, resulting in an embryo later implanted in a mother's uterus, which recently turned into two baby girls.[69] In 2018, a scientist from China, He Jiankui, claimed that his research had reached a milestone in gene editing to make people immune to HIV. He received immediate criticism for failing to uphold the research's ethical standards, leading to his dismissal from a university and three years of imprisonment. After Jiankui, other researchers started working on germ-line editing, which, if successful, may lead to changes in DNA. Some individuals, including Dr. Kevin Smith, a biologist from Abertay University, who commented on embryo genetic editing, observed that genetic editing would be essential to prevent severe, genetically transmissible diseases and to increase the lifespan free from disease. However, errors and health risks associated with assisted reproductive technologies may or may not be discovered during the procedures, putting healthcare professionals at a higher risk of liability than ever.[70]
With today's assisted reproductive technologies, parents are relaxed about making choices in their children's best interests. Eugenics is a good illustration of selective breeding, in which people choose whom to breed with to have a baby with the desired heritable traits, and reject others. However, it sometimes turns out wrong throughout gestation or after delivery. You might have had several lawsuits involving mishandled embryology lab procedures, such as the unintentional destruction or loss of specimens or the fertilisation and transfer of incorrect gametes and embryos.[71] Assisted reproductive technologies are linked to more than just moral issues. They present additional difficulties that could result in medical liability regarding prenatal diagnostics and laboratory procedures for the analysis of embryos, such as preimplantation genetic testing (PGT), screening of gamete donors, and carrier screening. As reproductive technologies advance, Rwanda has no specific regulations governing this medical procedure.
Accordingly, there is a need for clarity on what constitutes general practice as a standard for prenatal diagnostic screening and counselling. Although this is much more ethical than scientific, it brings legal intrigue. There should be standards for determining the probability of genetic or teratogenic harm. Otherwise, unlimited human desires will be prioritised. This is mainly based on the current knowledge and the rapid evolution of medicine. For example, the current reproductive technologies, such as in vitro fertilisation (IVF) and surrogacy, bring unprecedented ethical and practical issues. Indeed, evidence-based medicine involving genomic sequencing has been suggested for adoption in the field to enable physicians to obtain sufficient evidence to assess pathogenic factors in their decision-making.[72] However, it is also associated with some challenges that must be addressed.[73]
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In Molloy v. Meier, the Minnesota Supreme Court held that the failure to warn the mother of the risk to a future child could give rise to a claim against the physician, as the duty of care may extend to a third party who is not the patient.[74] A similar approach was taken in Pate v. Threlkel, in which the Florida Supreme Court stated that the physician's duty could extend to the patient's children's health, given the transmissibility of genetic harm associated with the physician's treatment of the patient. Thus, the physician has the duty to warn the patient of the risks of genetic and teratologic harm to his children.[75] With complete information about the possible danger, the expectant parents can make an informed decision about whether to terminate the pregnancy or not. However, this duty poses some challenges to health care providers.
The medical profession is prone to accusations of malpractice and negligence due to its sensitivity. Besides, medicine is evolving due to scientific discoveries and rapid technological development. What is general practice today might change tomorrow and become actionable for medical malpractice. Thus, it is vital to mention that there should be a margin of appreciation for medical liability concerning prenatal diagnostics due to its uncertain nature.[76] Indeed, while some genetic and teratological harm might be prevented, some could not. According to John M. Graham, every infant has a 3% to 5% risk of being born with a deformation or malformation. This risk can even reach almost 10% to be born with internal anomalies or undetectable functional deficits until they grow. Besides, human malformation from environmental hazards is rare, while other teratological factors, such as chemicals, drug exposures, and radiation, are estimated to be 1%. Additionally, although the cause of most congenital anomalies is unknown, an estimated 15% to 25% of human malformations result from genetic transmission.
These figures justify the uncertain nature of prenatal diagnostics and gaps that constitute a leeway leading to unexpected harm to the fetus, baby, or expectant mother. Healthcare providers should be prudent in prenatal genetic and teratological diagnostics and counselling. This twofold component, in which any related errors can result in medical liability, encompasses diagnosis, interpretation, offering genetic screening, returning test results to the patients, and treatment.[77] Thus, there is a need for a comprehensive framework considering those uncertainties in the physicians' exercise of their duty to warn.
Abortion might not be as sensitive in medical practice as in legal and social practice. Despite this sensitivity, it is sometimes a good option for expectant parents when the life of either the gravida or the fetus is at risk. This is also the case when prenatal diagnostics demonstrate genetic or teratological harm leading to malformations, deformations, or incompatibility with postnatal birth. Although deemed necessary, induced abortion has been controversial in various jurisdictions due to public policy, societal values, and beliefs. In this regard, the Constitution of Rwanda and the regional and international treaties ratified by Rwanda, respectively, the African Charter on Human and Peoples' Rights[78] and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), safeguard the family. They mainly protect the child and the mother[79] and the right to good health,[80] and primarily CEDAW guarantees the women's right to reproduction, which can be interpreted to incorporate the mother's right to self-determination on terminating a pregnancy because of genetic or teratological harm.[81] Besides, induced abortion is legal when performed not later than 22 weeks of gestation age, which may not be regarded in case the pregnancy puts the health of the mother or the fetus at risk.[82] However, it should always be performed under the conditions stipulated by the abortion law.[83] One of the conditions provided by the abortion law is that two medical professionals with a speciality in obstetrics or gynecology should confirm that the pregnancy puts the health of the gravida or fetus at risk. This condition raises a question of which probability rate should be the basis,
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since not all genetic or teratological harms can be detected with high probability.
Genetic testing has not generally been accessible in public health facilities in Rwanda that are familiar to most expectant mothers.[84] Still, some genetic problems can only be detected through genomic sequencing, a service available at a few hospitals in Rwanda.[85] In addition, high-resolution ultrasound devices are unavailable in most Rwandan health facilities, particularly in ANC and district hospitals where many expectant parents seek prenatal care. This situation challenges medical professionals in the prediction and prognosis of harmful genetic or teratologic disposition in the fetus or expectant mother, leading to the decision of pregnancy termination or early treatment. Besides, the process of satisfying the requirements for abortion takes a long time, sometimes ends up in childbirth, and thus discourages the practice. Therefore, the woman's right to self-determination on pregnancy termination is provided under the law, but exercising and enjoying it is seemingly limited.
Therefore, if the health care provider was negligent in the prenatal diagnostics and counselling that caused the inability to terminate the pregnancy and the subsequent wrongful birth and life, or progression of the mother's disability, then the failure to do so may give rise to liability for medical negligence. This is related to interference with the mother's autonomy, right to choose the optimal family structure, and freedom to procreate. It is not just based on the financial loss incurred. However, in principle, it does not preclude the compensation of monetary damages.
When performed under the law, induced abortions are acceptable in Hungary.[86] The pregnancy may be terminated until the 18th week of gestation based on a severe fetal abnormality.[87] Pregnancy termination is also permissible up until the 20th week of gestation or the 24th week in the event of a delayed diagnosis when the probability risk of genetic or teratological harm to the fetus reaches 50%.[88] Additionally, a pregnancy may be terminated regardless of gestational age if the expectant mother's health is in danger or the fetal abnormality is incompatible with postnatal life. Apart from the probability rate of genetic and teratological harm, which has been criticised by various research for being unsound,[89] the provision of abortion in Hungary is subject to limitations by the anti-abortion policies. Hungary has a stance against abortion. For example, in September 2022, it passed the fetal heartbeat law, compelling an expectant mother to hear the fetus's heartbeat as part of their informed consent and requirement to have access to the abortion procedure.
The heartbeat law is part of the national anti-abortion strategy. It has been criticised for bringing emotional concern to expectant mothers and influencing their decision-making by demeaning their capacity, already threatened by existing health conditions, and corrupting them to decide against abortion termination. This process leaves women with psychological trauma, like remorse, after opting for and terminating a pregnancy. The issue of allowing expectant mothers to abort pregnancies needs much attention. However, countries' limitations on elective abortion procedures might be reasonable.
Depending on the type of claim, the Rwandan and Hungarian courts may guarantee pecuniary and non-pecuniary damages using various methods. Although wrongful pregnancy and birth claims differ, the same principle may apply. Courts may award damages if the health care provider's negligence has been established. Negligence on the part of a health care provider may involve prenatal diagnosis, genetic screening offered, interpretation of test results, presenting test results to patients, treatment, and informed consent. Given that the contested health care services were intended to prevent pregnancy and no warning or possibility of failure was provided by the contested health care service provider, wrongful pregnancy claims are, therefore, admissible in both jurisdictions. Therefore, if the medical professionals who performed the vasectomy and tubal ligation failed to warn the patients about the possibility of failure, the case of the unsuccessful procedure could give rise to legal action. Likewise, the court may grant the parents non-pecuniary damages along with pecuniary damages if they prove that the health provider's negligence prevented them from exercising their right to choose pregnancy termination to prevent wrongful birth.
The judicial procedure is usually followed in Rwanda to address medical malpractice claims; however, this process is likely to take a while. Courts have been considering fault-based liability in this respect. However, it is always guaranteed to assess whether healthcare professionals are abiding by their duty of care. The Bolam Test applies, and the amount of compensation is determined by the seriousness and extent of the victim's harm. Additionally, courts have been using the doc-
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trine of vicarious liability involving the employer-employee relationship, which is common in many medical malpractice cases under the tort liability approach. Additionally, the Rwandan judicial system adopted an alternative dispute resolution (ADR) procedure for handling civil, commercial, and administrative matters. Mediation is now gaining momentum in this context by resolving various disputes through pretrial conferences and judge-facilitated mediation mechanisms.[90] Although there is no case regarding wrongful pregnancy and birth, they are likely to be successful following the precedents regarding medical malpractice and negligence.
Under Hungarian private law, a health care provider whose negligence has caused individual harm may be held liable for a delict, similar to many European countries.[91] A right relating to personality applies under the Hungarian Civil Code regarding non-material injury that must be compensated. In this line, any harm to life, physical integrity, or health has been considered a breach of personality rights. Like Rwandan courts, the Hungarian courts apply a but-for test to establish causation. The court considers the concept of proximate cause as part of an evaluation method to determine if there was a causal link between the duty of care that was owed and the harm suffered.[92] Any misconduct or failure concerning prenatal diagnosis is actionable in this situation. However, the courts may take different approaches when it comes to claims for the full cost of raising an unplanned child.
Rwandan and Hungarian courts far more commonly use the tortuous principle, but can also use a fiduciary relationship approach. A fiduciary relationship between the patient and the healthcare provider, sometimes known as the doctor-patient relationship, underlies the provision of health services. In this relationship, a patient can grant a doctor implicit or explicit authority to act in the patient's best interest or improve their health based on the best of his knowledge, with the utmost loyalty and good faith.[93] It should be highlighted that the patient is vulnerable and relies on the health care professional's skills and knowledge. This fiduciary relationship involves several duties, including acting responsibly and informing the patient.[94] However, all of the responsibilities in this regard are directed at giving the patient the best possible care while staying within the bounds of the given authority. However, all the duties in this regard are directed at providing the patient with the best possible care while staying within the bounds of the granted authority. In particular, the obligation to fully disclose all information regarding the range of treatment options and related risks is crucial in prenatal diagnostics since it demonstrates respect for the patient's auto- nomy. Failing to fulfil it may result in adverse events like wrongful birth. In this case, the court may use the principal-agent paradigm to prove the fiduciary duty was breached and grant the aggrieved party damages.
The contractual approach could also guarantee damages for the suffered harm related to wrongful pregnancy and wrongful birth. Even though the scope of medical providers' work falls under the obligation of means, they must still adhere to specific standards. Some medical services are rendered with the explicit guarantee from the healthcare professionals that they will fulfil the patient's requests. Although there might be no explicit guarantee, the medical professional also has a duty to fully disclose any treatment or procedure choices and any risks involved. A patient has the right to make an informed decision in this matter. The contract becomes effective once the patient gives his informed consent and the health care provider begins to treat him.[95] This contract establishes the health care professional's duty to provide and complete the agreed health services in a superior clinical manner. As today's health care services are patient-centred, the health care provider's responsibility also includes providing good communication and a positive environment.[96] The contract is breached if the patient can demonstrate that the health care provider did not fulfil the terms of the compromise or what he is reasonably supposed to do as an excellent clinician. The health care professional should act with proper respect, care, and good faith to avoid an adverse event. Any failure to deliver the expected outcomes and uphold professional standards of care is a breach of contract and subject to liability. In light of this, prenatal diagnostics and counselling are provided under a contractual arrangement, given that a healthcare professional is engaged and an expectant mother has agreed. So, based on that contractual relationship, wrongful pregnancy and wrongful birth claims could be filed.
Criminal charges in medical malpractice cases are rare and usually only come up when evidence of the healthcare provider's willful misconduct or gross negligence led to the patient's death or severe injury. In some situations, the health care provider could face criminal penalties for manslaughter. One instance of a medical malpractice case that led to criminal prosecution is People v. Murray. Jackson received a fatal dose of propofol from Dr. Conrad, which ultimately caused Jackson's death. As a result, Dr. Conrad was found guilty of involuntary manslaughter. Unlike civil actions, a health care provider who is proven guilty will receive an imprisonment sentence. In this light, if a mother gives birth to a child with a fatal disease and finds out that the fetus had a high likelihood of having that disease likelihood, but the health care provider intentionally chose not to inform her of the diagnosis and failed to give her the option of terminating the pregnancy, the mother may criminally sue the healthcare provider for medical malpractice.
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Furthermore, although Rwanda and Hungary do not have any relevant publicly available criminal cases,[97] medical malpractice in prenatal diagnostics may lead to criminal charges depending on the constitutive acts of the case. For instance, intentionally falsifying test findings or treating someone improperly for financial benefit can be considered fraud or other white-collar crimes.
However, it is essential to note that wrongful birth and wrongful life claims have been considered to stigmatise people with disabilities, as the consideration of non-existence over malformation or deformation is against disability rights.[98] Also, the research has shown that these claims harm mothers psychologically. The public blames the parents for taking a controversial attitude against their children in an endeavour to raise money for raising them.[99] This could be the basis for many jurisdictions to limit the admissibility of those claims under the so-called public policy.
Health care service providers are included in business activities in Rwanda stipulated by the Consumer Protection Law.[100] Patients are considered consumers and approach courts under this law.[101] This indicates that when getting healthcare services, a patient is entitled to several rights and protections under this law.[102] As consumers, one of the essential rights that patients have is the right to information, which health care providers have to respect, as previously discussed. Patients have the right to quality healthcare services in addition to the right to information. Health care providers must deliver services that adhere to high-quality and safety standards in a fair and friendly environment. Therefore, patients who feel that their rights have been violated or that they have received subpar prenatal health care may file claims for medical malpractice relating to prenatal diagnostics under the Consumer Protection Law.[103]
In Hungary, consumer protection is governed by Act CLV 1997 on Consumer Protection. The rights and responsibilities of consumers and firms involved in commercial activity, including healthcare providers, are outlined in this Act. Those rights are the same as we discussed in the previous paragraph. As a result, Hungary's Consumer Protection Act protects people from harm caused by healthcare professionals. The General Inspectorate for Consumer Protection receives administrative complaints from individuals or organisations that advocate for consumer rights, claiming that a service provider has breached their rights. Thus, if it is determined that health care professionals caused the harm, they can be entitled to compensation.
Therefore, both jurisdictions would harmonise different approaches to prevent and address clinical malpractice without using judicial procedures, known to incur time and money costs. An apology is the healthcare providers' acknowledgement of their errors and consequences, taking responsibility, and expressing regret for having caused harm to the patients.[104] This approach has been paramount in various jurisdictions, including the United States and Australia. It may nt blame culture, reduce anger, and increase compassion and benevolence, building trust and repairing the doctor-patient relationship.[105] Rwanda and Hungary can introduce this strategy by issuing policies and frameworks for managing patient incidents and open disclosure. Alongside those policies, the countries should pass apology laws to protect the apology's statements and regret from court admissibility as evidence.
The research has discussed the areas encompassing the prenatal diagnostics of genetic and teratologic harm and their related medical liabilities in Rwanda and Hungary. Antenatal diagnosis has been found realistic in both countries, although their practice varies depending on the available infrastructure, technology, and resources in the health care system. In Rwanda, ANCs and district hospitals commonly deliver antenatal diagnosis and counselling, but cannot detect genetic and teratologic harm. However, tertiary or referral hospitals and a few private hospitals and laboratories can provide genetically related health services, although they do not accept the existing health insurance policies. On the contrary, Hungarian expectant mothers can obtain these services under full coverage. However, some of the public health providers lost public trust, leading to pregnant women paying 'gratitude money' for better service in private clinics under the 'chosen doctor model'. However, it has been found necessary to embrace evidence-based medicine, such as non-invasive prenatal testing (NIPT), applying genomic sequencing to diagnose and predict harmful genetic and teratologic dispositions with more accuracy. This will address the expectant parents' worries about giving birth to children with malformation, deformations, or early mortality. It will also help expectant mothers in their right to self-determination on the termination of pregnancy in case they pose a threat to the health of the fetus or the gravida. Consequently, with evidence-based medicine, medical malpractice claims will decrease.
Moreover, exercising the woman's reproductive rights, such as the right to choose the best family structure and the right to reproductive autonomy or freedom of choice on the termination of pregnancy, is restricted under Rwandan law. Besides, it is also subject to unwelcoming procedures in Hungary due to
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anti-abortion policies, while it could serve in issues related to harmful genetic and teratological disposition. Both countries would decriminalise the abortions performed by doctors and harmonise the abortion procedures by removing the anti-abortion policies to prevent unplanned children in the future.
Awardable pecuniary and non-pecuniary damages have also been discussed in the two jurisdictions. Despite the nuance of differences, there have been many similarities because both countries' legal systems are civil, emphasising judicial precedent. Wrongful pregnancy claims and wrongful birth are actionable under both systems. Although there have been no precedent cases in Rwanda, they are likely admissible and successful due to the courts' stand in other medical malpractice precedents. In both jurisdictions, courts have awarded pecuniary damages for the actual loss suffered, such as medical bills, loss of salary, loss of property, medical expenditure, rehabilitation costs, and litigation fees. Besides, the courts may grant non-pecuniary damages, including loss of consortium, disfigurement, pain and suffering resulting from pregnancy or losing her baby, PTSD, loss of quality of life, and disability. However, there the law would cap non-economic and punitive damages. Rwandan courts consider those damages moral, while in Hungary, restitutions follow its delictual mode of liability. For wrongful birth claims, some Hungarian courts have taken a different approach in awarding damages for the total child-raising costs due to public policy.
It is essential to reveal that an increase in medical malpractice regarding prenatal diagnostics may lead to defensive medicine in which clinicians, mainly private ones, could develop a reluctance to deliver those services by excluding them, in whole or in part, from the list of their health services since they are prone to future liability. This is because medical liability costs a lot of money for health care institutions, while the malpractice premiums are also high. Thus, this approach would not only be improved by developing a robust insurance scheme under which they are sheltered from malpractice liabilities. Instead, there is a need for a no-fault system and a vibrant medical malpractice compensation scheme. Pecuniary damages should be awarded if the plaintiffs can prove the incurred expenses.
The health care service delivery is patient-centred, which makes it litigious. Health care professionals are bound by the duty of care, which could be interpreted broadly to encompass all the patients' rights. However, the basic rule to maintain is to respect the patient's autonomy and prioritise their interests by acting with reasonable care and utmost loyalty. Otherwise, any harm resulting from the health care providers' non-observance of the existing standards of a responsible body of medical opinion is likely to hold them liable. So, health care systems should be improved by empowering medical personnel with continuing professional training and providing the necessary equipment to adjust the health service delivery to the needs of an open society.
Moreover, increasing public awareness would be another strategy to decrease medical errors. This may be related to informed consent, in which patients decide on their best treatment after receiving complete information about the risks and advantages of the proposed treatment choice. In this regard, patients should feel free to express any concerns about their treatment options and ask any questions. This could facilitate better interaction between patients and healthcare providers. Finally, taking preventive measures would be a different approach to minimise the rate of medical malpractice. This entails implementing rules and practices that promote patient safety, such as regular staff training and inspection of health care practices. Upholding performance evaluations and, if necessary, disciplinary sanctions will hold health care providers accountable for their deeds.
However, none of the above proposals will be possible without individual and community commitment. The robust health care system will ultimately depend on a partnership between all stakeholders, including policymakers, the private sector, and civil society. This will consolidate the efforts to solve various issues discussed facing the Rwandan and Hungarian health care systems, including medical malpractice connected to prenatal diagnostics.
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[45] Dr Rita Lénárd: "Vulnerability and Chaos in the Hungarian Healthcare System", HEINRICH-BÖLL-STIFTUNG (Berlin, May 2018), https://www.boell.de/en/2018/05/31/vulnerability-and-chaos-hungarian-healthcare-system.
[46] K-Monitor, Funky Citizens, and EMMA Association, "The Majority of Hungarian Children Are Born in Corruption," A K-MONITOR BLOGJA, January 2021, https://k.blog.hu/2021/01/02/maternity_english.
[47] Nicholas Rubashkin et al.: "Examining Obstetric Interventions and Respectful Maternity Care in Hungary: Do Informal Payments for Continuity of Care Link to Quality?", Birth, 48, no. 3 (2021). 315-16, https://doi.org/10.1111/birt.12540.
[48] Nándor Ács,ó - Ferenc G. Bánhidy - Andrew E. Czeizel: Congenital Abnormalities and Preterm Birth Related to Maternal Illnesses during Pregnancy, Congenital Abnormalities and Preterm Birth Related to Maternal Illnesses During Pregnancy, 2010, https://doi.org/10.1007/978-90-481-8620-4.
[49] Papp: "Genetic Counseling and Termination of Pregnancy in Hungary."
[50] Nicholas Rubashkin et al.: "Assessing Quality of Maternity Care in Hungary: Expert Validation and Testing of the Mother-Centered Prenatal Care (MCPC) Survey Instrument", Reproductive Health, 14, no. 1 (2017): 6-8, https://doi.org/10.1186/s12978-017-0413-3.
[51] Cordelia Thomas: Claims for Wrongful Pregnancy and Damages for the Upbringing of the Child, UNSW Law Journal, vol. 26, 2003. 126-127.
[52] W. T. Oosthuizen - P. A. Carstens: "Medical Malpractice: The Extent, Consequences and Causes of the Problem", Tydskrif Vir Hedendaagse Romeins-Hollandse Reg, 2013, no. 103 (2015). 271-272, http://ssrn.com/abstract=2693960.
[53] "Fact Sheet: Understanding Non-Economic Damages", Center for Justice & Democracy (New York, April 2023), https://centerjd.org/content/fact-sheet-understanding-non-economic-damages.
[54] Cornell Law School: "Punitive Damages," Legal Information Institute, accessed November 25, 2024, https://www.law.cornell.edu/wex/punitive_damages.
[55] "Punitive Damages in Personal Injury Cases", Justia, October 2020, https://www.justia.com/injury/negligence-theory/punitive-damages/.
[56] Martin Hogg: "Damages for Pecuniary Loss in Cases of Wrongful Birth", Journal of European Tort Law 1, no. 2 (2010): 156-70, https://doi.org/10.1515/jetl.2010.156.
[57] Ibid.
[58] Sofia Yakren: "'Wrongful Birth' Claims and the Paradox of Parenting a Child With a Disability", Fordham Law Review, 87, no. 2 (2018). 590-601, 602-622, 623, https://ir.lawnet.fordham.edu/flr/vol87/iss2/4/.
[59] Gál István László - Kőszegi László: Az orvosi műhibák értékelése a gyakorlatban, különös tekintettel a császármetszéssel kapcsolatos diagnosztikai tévedésekre II. MED ET JUR, 2025/3. 20-23.
[60] Nyirabatesi Laurence v. King Faisal Hospital, RCAA 00073/2018/CA.
[61] King Faisal Hospital v KAMATENESI Jovia, RCA 00056/2016/HC/KIG - RCA 00057/2016/HC/KIG (2017).
[62] Benke: 1156, 1173-76.
[63] Ibid., 1159 -60.
[64] Cattanach v Melchior [2003] HCA 38; 215 CLR 1 (2003).
[65] Christopher Zinn: "Unjustified Seclusion of Psychiatric Patients Is Breach of Human Rights Genetic Test Can Show Whether Drugs to Treat Colon Cancer Will Work Doctor Who Botched Sterilisation Has to Pay Cost of Raising Child," BMJ, 327, no. July (2003). 183.
[66] Peter DePaolis: "Medical Malpractice Damages Caps: A State by State Examination," accessed April 30, 2023, https://koonz.com/medical-malpractice-damages-caps/.
[67] Attila Menyhárd: "Punitive Damages: Common Law and Civil Law Perspectives," in Punitive Damages: Common Law and Civil Law Perspectives, (Springer, 2009), 87-102, doi: https://doi.org/10.1007/978-3-211-92211-8.
[68] Gál István László: Néhány szempont az orvos büntetőjogi felelősségének kizárásához. Magyar Nőorvosok Lapja, 2024/6. 342-344.
[69] Antonio Regalado: "The First Babies Conceived with a Sperm-Injecting Robot Have Been Born", MIT Technology Review, April 2023, https://www.technologyreview.com/2023/04/25/1071933/first-babies-conceived-sperm-injecting-robot-ivf-automation-icsi-overture/.
[70] Ananya Singh: "Artificial Wombs to Enhanced Babies, How Ethical Is the Future of Birth?", The Swaddle, (April, 2023), https://theswaddle.com/.
[71] Jeremy Applebaum et al.: "Malpractice Litigation Surrounding in Vitro Fertilization in the United States: A Legal Literature Review", Fertility and Sterility, 119, no. 4 (2022). 574-576, https://doi.org/10.1016/j.fertnstert.2022.12.038.
[72] McGrath et al.: "Legal Challenges in Precision Medicine: What Duties Arising From Genetic and Genomic Testing Does a Physician Owe to Patients?"
[73] Gary Marchant et al.: "From Genetics to Genomics: Facing the Liability Implications in Clinical Care," Journal of Law, Medicine and Ethics, 48, no. 1 (2020). 24-37, https://doi.org/10.1177/1073110520916994.
[74] Mark A. Rothstein: "Reconsidering the Duty to Warn Genetically At-Risk Relatives," Genetics in Medicine 20, no. 3 (2018): 285-89, https://doi.org/10.1038/gim.2017.257.
[75] United States State Supreme Court of Florida, Pate v. Threlkel (1995).
[76] 'Margin of Appreciation' in this context means an acceptance of certain limits due to the practical nature of the medical profession particularly in relation to prenatal diagnostics which presents uncertainty.
[77] Gary E. Marchant - Rachel A. Lindor: "Genomic Malpractice: An Emerging Tide or Gentle Ripple?," Food and Drug Law Journal, 73 (2018). pp. 18-22.
[78] African Charter on Human and Peoples' Rights, 1981. Article 16 states the following:
1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
[79] The Constitution of the Republic of Rwanda of 2003 revised in 2015. Article 18 (3) states that "The State puts in place appropriate legislation and organs for the protection of the family, particularly the child and mother, in order to ensure that the family flourishes."
[80] Ibid. Article 21.
[81] "Convention on the Elimination of All Forms of Discrimination Against Women," 1979. Article 12 (2) of this Convention (CEDAW) stipulates that "... States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation".
[82] Article 3 of the Ministerial Order N°002/MoH/2019 of 08/04/2019 Determining Conditions to Be Satisfied for a Medical Doctor to Perform an Abortion provides that abortion is performed on the following grounds:
1. the pregnant person is a child;
2. the person requesting for abortion became pregnant as a result of rape;
3. the person requesting for abortion became pregnant after being subjected to a forced marriage;
4. the person requesting for abortion became pregnant as a result of incest committed with a person to the second degree of kinship;
5. the pregnancy puts the health of the pregnant person or the foetus at risk.
[83] Ministerial Order N°002/MoH/2019 of 08/04/2019 determining conditions to be satisfied for a medical doctor to perform an abortion.
[84] Annette Uwineza - Leon Mutesa: "Medical Genetics and Genomic Medicine in Rwanda", Molecular Genetics and Genomic Medicine, 3, no. 6 (2015): 486-89, https://doi.org/10.1002/mgg3.p.184.
[85] Initially, genetic testing was introduced in Rwanda in 2005. Patients could only access this service at the University Teaching Hospital of Butare (CHUB) and University Teaching Hospital of Kigali (CHUK) upon referral based on congenital malformations, infertility, intellectual disability, and repetitive abortions. The only test covered by health insurance was the cytogenetic test until 2015. See also. Annette Uwineza - Leon Mutesa: "Medical Genetics and Genomic Medicine in Rwanda", Molecular Genetics and Genomic Medicine 3, no. 6 (2015). 486-89, https://doi.org/10.1002/mgg3.184. At this moment, advanced genetic screening can be available at limited health facilities in Rwanda, including the university teaching hospitals (CHUB and CHUK), King Faisal Hospital (KFH), Rwanda Military Hospital (RMH), and some medical labs such as AlphaBiolabs Rwanda, Nucleic Acid Testing Lab.
[86] Article 6 (3) of "1992. évi LXXIX. törvény a magzati élet védelméről (Act LXXIX of 1992 on the Protection of Fetal Life)" (1992).
[87] Ibid. art. 6 (2).
[88] Ibid. art. 6 (3)-(4).
[89] Benke: "'Should I Have Been Carried From the Womb To the Grave?' The Judicial Practice of Pecuniary Damages for Birth With Genetic or Teratological Harm in Hungary and Its Possible Impact on Medical Practice."
[90] Supreme Court of Rwanda: "Perfomance of the Judiciary during the Year 2021-2022," 2022. 1-2.
[91] Tímea Barzó: "Medical Liability in the Light of New Hungarian Civil Code", Practice and Theory in Systems of Education, 10, no. 1 (2015): 109-13, https://doi.org/10.1515/ptse-2015-0010.
[92] Attila Menyhárd: "Economic Loss Caused by GMOS in Hungary", in Economic Loss Caused by Genetically Modified Organisms: Liabilities and Redress for the Adventitious Presence of GMOs in Non-GM Crops, ed. Bernhard A. Koch, vol. 24 (New York: Springer Verlag Wien, 2008). 263-264.
[93] Gabriel Lázaro-Muñoz: "The Fiduciary Relationship Model for Managing Clinical Genomic 'Incidental' Findings", Journal of Law, Medicine and Ethics, 42, no. 4 (2014): 576-86, https://doi.org/10.1111/jlme.12177.
[94] Burkhard Madea, "Medical Malpractice", Pacific Medical Law, no. 162 (2019). 23-25, https://doi.org/10.1002/9781118570654.ch31.
[95] M. Slabbert - M. Labuschaigne: "Legal Reflections on the Doctor-Patient Relationship in Preparation for South Africa's National Health Insurance", South African Journal of Bioethics and Law, 15, no. 1 (2022). 31., https://doi.org/10.7196/SAJBL.2022.v15i1.786.
[96] Christopher Gordon: "The Doctor-Patient Relationship", Massachusetts General Hospital Handbook of General Hospital Psychiatry, 6th ed. (Elsevier Inc., 2010), 15-21, https://doi.org/10.1016/B978-1-4377-1927-7.00003-0.
[97] Gál István László - Bencsik Tamás: Az orvos büntetőjogi felelősségének néhány aktuális elméleti és gyakorlati kérdése, Magyar Jog, 9/2025. 292-297.
[98] Wendy F. Hensel: "The Disabling Impact of Wrongful Birth and Wrongful Life Actions", Harvard Civil Rights-Civil Liberties Law Review, 40, no. 1 (2005). 150-95.
[99] Yakren: "'Wrongful Birth' Claims and the Paradox of Parenting a Child With a Disability", 602-23.
[100] Article 3 (1) of Law No 36/2012 of 21/09/2012 Relating to Competition and Consumer Protection.
[101] Ibid., Article 2 (11).
[102] "Rwanda Utilities Regulatory Authority (RURA)," accessed April 30, 2023, https://rura.rw/index.php?id=264#:~:text=A consumer has a right to fair treatment without undue, type and quality of services.&text=A consumer has a right to complain and to receive,effective redress at no cost.
[103] See Supra note 103, Article 50.
[104] Jennifer K. Robbennolt: "Apologies and Medical Error", Clinical Orthopaedics and Related Research, 467, no. 2 (2009). 376-79, https://doi.org/10.1007/s11999-008-0580-1.
[105] Nina E. Ross - William J. Newman: "The Role of Apology Laws in Medical Malpractice", Journal of the American Academy of Psychiatry and the Law, 49, no. 3 (2021. 1-7, https://doi.org/10.29158/JAAPL.200107-20.
Lábjegyzetek:
[1] The author is PhD Student, Doctoral School of Law, University of Pécs, Hungary, and Kigali Independent University (ULK), Rwanda.
Visszaugrás
