THE PRINCIPLE OF REPRODUCTIVE AUTONOMY AND THE RIGHT TO INFORMED CONSENT AS A HUMAN RIGHT

Resumo

This essay aims at analyzing the ever current, and widespread, problem of the redress of damages arising from an undesired birth, in the light of the protection of human rights, as guaranteed by international conventions. Indeed, as pointed out in a report issued by the Council of Europe in 2017, sexual and reproductive rights, including the right to sexual and reproductive health, are intrinsic elements of the human rights framework. The aforesaid problem involves examining, in legal terms, a question that may seem of a philosophical nature: the existence of the right not to become parents. The authors’ purpose is, at first, to understand if it is possible to consider the child’s life in itself as a damage for the mother, arising from an injury to reproductive autonomy (that can be defined as the freedom of each individual to decide if and when having children), and, if the answer is affirmative, to clarify whether the relevant injuries are deemed to be injuries to fundamental rights, with the consequent repercussions in terms of remedies. In this framework, it is important to investigate on the factors that have determined the increase in the number of legal controversies relating to the reproductive choices, among which a primary role, in addition to the advancement in medicine and the changes in social attitudes, has been played by the legislation on abortion. The main focus is put on wrongful birth actions, in which the claims brought by parents originate from the birth of a child in circumstances where pregnancy would have been lawfully terminated or would not have otherwise occurred, if it were not for the negligent conduct of a healthcare provider who provided incorrect information or omitted essential information, preventing the mother from self-determining in the reproductive field. The authors argue that the women’s right to informed consent in relation to reproductive health (i.e., the right to be fully informed of their options, including benefits and potential adverse effects of undergoing further exams and/or terminating pregnancy) shall be regarded as a human right. This should prompt courts all around the world, to guarantee complete recovery to the parents, instead of compensating damages only partially and generally refusing to recognize the ordinary costs for child rearing.