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Protection of Human Life in Its Early Stage

Intellectual Foundations and Legal Means

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Edited By Alexander Stepkowski

The book consists of thirteen studies examining different aspects of human life protection in the early stage of its development. The contributions are arranged in three parts. Part I focuses on theoretical problems and examines the main issues of contemporary jurisprudence. The foundation of human rights, different approaches to sovereignty, the relation between law and science, the legitimacy of judicial power, and the nature of legal authority are discussed. Part II presents the issues within the national contexts of the USA, Germany, Austria and Poland. In a wider perspective, Part III examines the issue of the protection of human life in the prenatal phase on three different levels: within the EU, within the European Court of Human Rights case law and the UN system.
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The Child as Damage in the Light of Austrian Law

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Thomas J. Piskernigg*

I. Introduction

On 25th May 1999 the Austrian Supreme Court (Oberster Gerichtshof; OGH), the country’s highest court for civil and criminal proceedings, handed down a landmark ruling:1 in the course of a prenatal diagnosis doctors had failed to identify a serious disability in an unborn child. Had such disability been properly diagnosed, the unborn child would have been aborted – thus the child’s life was actually saved “owing to the medical error.” In line with the claims asserted by the plaintiff, the court ordered the persons responsible for the “error” to pay damages – not the full costs of the child’s maintenance, but nonetheless a sum in lieu of compensation for the additional effort required by the child’s parents in connection with its disability. The verdict was grounded on two notions: the child’s maintenance should be considered a damage in the meaning of § 1293 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch; ABGB); and the abortion of a child with a disability in order to prevent the damages associated with its maintenance would have been lawfully possible, but was not conducted owing to an erroneous diagnosis.

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