Costs of child support in the case of unlawful preventing a woman from having abortion performed

Autore:Maciej Rzewuski
MACIEJ RZEWUSKI
COSTS OF CHILD SUPPORT IN THE CASE OF
UNLAWFUL PREVENTING A WOMAN FROM
HAVING ABORTION PERFORMED
The subject of this article are selected detailed issues concerning the costs
of supporting a child in the case of unlawful preventing a woman from hav-
ing abortion performed. This subject matter is highly controversial both in
the doctrine and judicature, Polish and foreign. This elaboration is based in
particular on the analysis of dominating views of representatives of law sci-
ence in this matter and an attempt to formulate nal conclusions.
The issue concerning a necessity to incur costs of supporting a child born
as a result of unlawful preventing a mother from having abortion performed
causes a lot of controversy in literature. This matter is so complex because
there is no explicit, well-grounded attitude of judicature.
This question appears per analogiam in most legislations, both European
and American. Although in principle foreign provisions regulate liability for
damage resulting from giving birth to an ”unwanted” child, action aimed at
limiting this liability in relation to the costs of child support is commonly
taken. In the German system of civil law such action is enabled by the con-
cept of a protective aim of a contract, while in the French legislature – a law
of 4 March 2002 limiting parents’ claims for compensation only to compen-
sation and indemnity excluding the costs of supporting an impaired child,
which ipso iure burden the state. In turn, limiting of the liability in question
in the United States of America is enabled by the so called benet rule prin-
ciple, corresponding to the Polish rule compensatio lucri cum damno1. It is
noteworthy that according to the interpretation of the European Tribunal of
Human Rights due to a ticklishness of the problem, the member states of the
European Communities are guaranteed a freedom of activity in this scope2.
Without prejudice to the above remarks of legal and comparative char-
acter, one has to notice a unique regularity in the jurisdiction of the Polish
1 Such are the reasons for the resolution of the Supreme Court of 22 February 2006, III CZP
8/06, Lex no. 171722.
2 Decision against Norway of 19 May 1992, complaint 17004/90, DR 73/155.

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