BGHZ 124, 128
= NJW 1994, 788
VI. Civil Senate
(VI ZR 105/92)
16 November 1993
Professor B.S. Markesinis


The first and second plaintiffs are the parents of a girl born in 1982 with a mental and physical handicap. Suspecting that they might have an abnormal genetic disposition, they were, in August 1983, referred by their GP to the Department of Clinical Genetics (run by the first defendant) of the Institute of Anthropology and Human Genetics of the University (third defendant), because they wished to be advised, prior to deciding on a second pregnancy, of the possibility of an adverse hereditary disposition. The second defendant, a doctor at the Institute’s clinic, made tests and on 27 October 1983 and wrote a report, which was signed by himself and the first defendant. Copies of this report, informing the two plaintiffs that an inherited adverse disposition was very unlikely and that the couple should not be dissuaded from further pregnancies, were also sent to their GP. On 6 March 1985, the third plaintiff was born with the same mental and physical handicaps as the first child. The plaintiffs, believing that the genetic consultation and advice had been faulty, claimed damages from the defendants. The first and second defendants requested the court to clarify whether they were liable to make compensation for any current and future material losses stemming from the third plaintiff’s brain damage, as far as these claims have not been transferred to the social security bodies. The second and third plaintiffs also demanded damages for pain and suffering.

The Landgericht rejected the claim. On appeal by the first and second plaintiff, the Oberlandesgericht declared that the first defendant must compensate the (first and second) plaintiffs for all current and future losses originating from the birth of the third plaintiff, including the entire costs of living. The Court also decided that the first and second defendant are liable as joint and several debtors to pay the second plaintiff damages for pain and suffering for the birth of the third plaintiff. The Court rejected all other claims. By this further appeal, the first and second defendants requested that the Landgericht decision be restored; the first and second plaintiff (hereinafter: ‘the plaintiffs’) claimed that the third defendant should be included in the decision on liability. The third plaintiff’s further appeal was withdrawn. This Division only accepted the first defendant’s further appeal in so far as it concerned the claim for financial losses. The further appeal was unsuccessful.


I. The Appeal Court held that the first defendant was liable for his breach of the consultation contract, including his liability for the breach committed by the second defendant as employee performing his obligation (§ 278 BGB).

II. The further appeal fails to challenge the Appeal Court’s reasoning.

1. In respect of the contract of genetic consultation, the further appeal unsuccessfully challenges the first defendant’s status as the mainly liable contractual partner.

According to the findings of the Court of Appeal, the plaintiffs were referred for genetic counselling by their GP to the department run by the first defendant of the institute run by the third defendant. The Appeal Court also correctly ascertained that the first defendant was authorised by the National Health Service to provide this kind of service.

In view of this situation, the Appeal Court followed the principle repeatedly expressed by this Division (BGHZ 100, 363 [367 et seq.]; BGHZ 105 , 189 [194]; BGHZ 120, 376 [382 et seq.]) that the first and second plaintiffs only entered into a contract with the first defendant, since the out-patient treatment of National Health patients is not first and foremost the duty of the body running the hospital, but is rather that of the approved National Health doctor or the chief consultant appointed for National Health patients. As a result, a National Health patient only enters into a contract with the chief consultant running the out-patient National Health department, and not with the hospital even where the GP’s referral names the hospital (BGHZ 105, 189 [194]).

A genetic consultation is not an alternative to out-patient and in-house treatment but is rather a form of out-patient treatment … The first defendant, not the Institute itself, was the person authorised by the National Health organisation to provide such counselling, … Internal arrangements as to payment between the doctor and the Institute cannot alter the fact that as regards the consultancy contract, the duly appointed chief consultant was the plaintiffs’ contractual partner.

2. The further appeal unsuccessfully challenges the opinion of the Court of Appeal that the counselling by the second defendant (for which the first defendant is reponsible) was wrong …

(a) … According to the undisputed findings of the Court of Appeal, the question whether the first-born child suffered from genetic or prenatal damage was at the time of consultation left unanswered. The Appeal Court, therefore, held that the letter written on 27 October 1983 by the first and second defendants, stating that (a) an adverse inherited disposition was extremely unlikely and an as yet unknown prenatal damage was the most likely cause of the disabilities; (b) a repetition was not to be expected; and (c) a further pregnancy should not be dissuaded, misrepresented this uncertainty. In view of the open-ended medical results, the advice which the parents derived from this letter was not sound enough. The genetic counselling should have made this point clear.

The further appeal submits that the letter had been sent to the GP, and the plaintiffs had only been sent a copy of it … In view of the clear statements contained in the defendants’ letter, the further appeal fails to show how the GP could have advised his patients as to possible risks along any other lines … For its opinion that the risks had been assessed too optimistically and that the recommendations had been insufficiently safe, the Appeal Court could unreservedly rely on expert advice.

The Court of Further Appeal does not doubt that the lower court’s findings show a connection between the tortious act (the wrongful consultation) and the resulting damage; had the consultation been complete and correct, the plaintiffs would not have had another child. The Appeal Court correctly held that the damage claimed resulted from a breach of duty which the first defendant had under the consultancy contract, since the genetic consultation was intended to prevent the birth of a genetically damaged child by allowing the parents to make a reasoned decision. The Appeal Court held that there existed a sufficient with the protective purpose of the consultancy contract if any kind of genetic damage to the third plaintiff was at least a factor contributing to any mental or physical handicap. In view of the facts of the case this could be easily ascertained: both children had the same symptoms of damage, suggesting a combination of genetic and exogenic damage. As regards the third plaintiff, mere prenatal damage could, for all intents and purposes, be ruled out … The fact that the exact nature of the third claimant’s established genetic damage could not be exactly ascertained, prevents neither the finding of a causal connection between the wrongful advice and the birth of a genetically damaged child, nor the inclusion of the damage to health under the scope of protection of the consultancy contract since by this contract all possible genetical damage was to be excluded …

3. The further appeal fails in so far as it opposes the finding that the plaintiffs’ claim for damages comprises the total costs of living necessary for the third plaintiff.

. . .

(b) In view of the findings of the Court of Appeal that the plaintiffs would have refrained from having another child if they had fully and correctly been advised on the genetic implications, the opinion of the Court of Appeal is in line with the case law of this Division, according to which the costs of maintenance resulting from the birth of the further child can be claimed from the wrongly advising doctor as damages for breach of the consultancy contract. This Division has decided this point on a number of occasions for comparable groups of cases, i.e. for cases of (a) wrong advice on the prevention of the birth of a severely prenatally damaged child (BGHZ 86, 240 et seq.; BGHZ, 89, 95 et seq; NJW 1987, 2923), (b) failed sterilisation (BGHZ 76, 249 et seq.; BGHZ 76, 259 et seq; VersR 1980, 719; NJW 1981, 630; NJW 1981, 2002 ; NJW 1984, 2625; NJW 1992, 2961), and (c) failed (permissible) abortions (BGHZ 95, 199; NJW 1985, 2752; NJW 1985, 671; NJW 1985, 2749; VersR 1986, 869; NJW 1992, 1556). The facts of this case provide no reasons why the principles developed for those cases cannot be applied to a case where the parents of a handicapped child, before procreation of another child, undergo genetic counselling in order to prevent the risk of giving birth to a second handicapped child.

(c) The Second Division of the Bundesverfassungsgericht (Federal Constitutional Court) in its decision of 28 May 1993 (NJW 1993, 1751 et seq.*), headnote no. 14, and in its reasons under D V 6, expressed its doubts as regards the decisions of this Division. Although the remarks of the Bundesverfassungsgericht are not binding on this Court, and this Division has already repeatedly and critically reviewed its own previous findings (see BGHZ 76, 249 [252] and NJW 1984, 2625), a further detailed analysis of the legal position is called for.

The Bundesverfassungsgericht decided that the legal possibility that a child’s existence may be a source for damages is constitutionally barred under Article 1 I GG. The duty of all organs of the state to honour every human being in its existence, (and here reference is made to Part I 1 a) of the decision) prohibits, in itself, the view that maintenance of a child can be seen as financial loss. The case law of the civil courts on liability for medical errors in counselling on failed abortions should therefore be reviewed.

This Division fails to find this remark of the BVerfG a reason why in the case here under investigation expenses for maintenance cannot be seen as financial loss.

(aa) The legal classification of expenses for maintenance proceeds from the contractual liability of the doctor to full all medical requirements in order that the treatment or consultancy undertaken by him be successful. Such legal liability can, however, only be used as a starting point for contracts whose legality is not in question. As regards abortions without legal justification which, as a result of the Constitutional decision of 1993 must now be regarded as illegal (for instance because the previously applied justifications are no longer accepted as valid . . .), this Division can here leave undecided, whether in such cases the need to prevent economic loss arising from a child’s existence is at all relevant for the contractual relationship and, even where such need existed, if it could be the starting point for a claim for damages.

On the other hand, (a) consultancy contracts intended to prevent, as here, the procreation or, in other cases, the birth of a genetically damaged child; or (b) sterilisation contracts aimed at preventing the birth of any, or any further, children or (c) contracts for the legally permitted abortion of a pregnancy, (for instance in cases where such termination is undertaken for criminological or embryopathic reasons), are all contracts intended to reach a legally permissible objective. If there are no qualms about the legal validity of a contract for sterilisation (see this Division BGHZ 67, 48 [51 et seq.] and NJW 1984, 2625), there should, a fortiori, be none in cases like the present. The plaintiffs’ intended to have a second, but not as handicapped child as their first, and in order to prevent the damage feared as a result of the first child’s handicap, they wished to make procreation dependant on the outcome of a consultation. Such intentions cannot meet with moral qualms. Such behaviour is due to a high degree of parental responsibility.

Where a contract is geared to reaching a legally permitted aim, i.e. the birth of a child (in this case potentially genetically impaired), the doctor is responsible for obtaining the contractually agreed aim by fulfilling his accepted duties. The Division cannot see any constitutional doubts. In the cited decision, the BVerfG in its reasons expressly points out that faulty performance of medical duties in respect of treatment or advice can in principle lead to civil liability. The constitutional and general legality of contracts such as the ones described above is reflected in the contents of these contracts in so far as they are geared to prevent economic burdens incurred from the birth of children. Where this was properly contractually agreed, such economic protection is part of the duties which the doctor accepted and the legal order condones. Thus, this Division adheres to its previously reasoned opinion that the doctor’s liability includes liability for the prevention of this economic consequence where, as part of the specific aims of the contract for treatment and consultation, he had also accepted that of the prevention of such losses. This Division has affirmed this result for cases of sterilisation for reasons of family planning ( BGHZ 76, 249 [256]; 76, 259 [263 et seq.]; NJW 1981, 630; NJW 1981, 2002 and NJW 1984, 2625). In a case similar to this one, where during pregnancy a consultation took place aimed at preventing the birth of a severely disabled child, this Division (BGHZ 89, 95 [104 et seq.] held that even in such cases the prevention of economic burdens is part of the protection envisaged by the consultancy contract, even where this is not its paramount reason, as in cases of sterilisation for economic reasons.

Where in the course of such contracts the doctor commits a medical error leading to the birth of a child, his liability includes his duty to reimburse the contractual partner for all economic losses which the contract was intended to prevent. Accepting a medical duty aimed at attaining a permitted contractual purpose makes the doctor legally responsible and has consequences for his liability. In the last instance the protection afforded to the contractual partner, which stems from the doctor’s liability, is a consequence of medical progress which, within the boundaries of the law, opened up the possibility of preventing the birth of a child.

(bb) Given these facts, it would be a grave incursion into the parties’ contractual interests if the doctor were free from consequential liability in cases of culpable breach of contractual duties. Even when considering the BVerfG’s opinion, this Division cannot detect any constitutionally-based reason why such a grave incursion into contractual liability is needed. Here, protection of a nasciturus from abortion is not at issue. This point of view is also obviously not the starting point of the BVerfG’s criticisms, which are directed, without differentiation, at this Division’s jurisdictional principles. Nor can an opposing constitutional reason be derived from the view that the economic burden which must be borne by the doctor as a result of his breach of contract actually consists of the costs of living of a child.

(i) This Division shares the views underlying the reasoning of the BVerfG in its decision of 28 May 1993 (NJW 1993, 1751 et seq.) that it is constitutionally prohibited ( Art. 1 GG) to classify the very existence of a child as damage, even within the laws of contract and tort. This Division has repeatedly expressed this view (BGHZ 76, 249 [253 et seq.]; NJW 1984, 2625).

But in its leading decision (BGHZ 76, 249) this Division has already pointed out that to use the slogan ‘child as damage’ is an inappropriate and legally useless way of looking at the problem. Instead, the Court in this and later decisions, especially in its decision of 19 June 1984 (NJW 1984, 2625) declared that the damage consists of the costs of maintenance incurred by the unplanned birth of the child. The Court held that in this respect the distinction between the child’s existence and its undoubted value as a person on the one hand, and the parents’ maintenance burden on the other, does not represent an artificial disintegration or a ‘dissection of the child’s personal integrity’ (see for instance Lankers in FamRZ 1969, 384), but is rather a logical consequence of looking at the problem from the point of view of the law of damages. In order to reach the consequences of the law of damages here under discussion, neither the legal provisions of the law of damages nor those of family law, nor an unrestrained contemplation of the entire facts, require that the very existence of the child is seen as the damaging event. It is only the ensuing financial burden to the parents, i.e. the cost of maintaining the child, which represents the damaging economic loss. The provisions on liability do not exonerate the parents from their own duty to provide maintenance for their child. Their own duty to the child and their costs in maintaining the child are only partially met by the doctor’s liability.

(ii) According to the opinion of this Division, considerations of liability and damage are not precluded by the fact that the economic burden takes the form of maintenance for a child. The legally necessary comparison of the economic situation with and without the damaging event does not mean that the child’s existence and its non-existence are compared in the sense that the child’s non-existence is regarded as a positive and its actual existence as a negative economic factor. This point of view would certainly meet with constitutional objections under Article 1 GG. But such a comparison would also be wrong under the law of damages. When the considerations of liability and damage are solely restricted to the economic side of the complex facts which the birth of a child involves, the conclusion is reached that for the person liable to provide maintenance, the comparison of the two economic situations needed to determine the actual loss merely comprises the economic situation with and without the duty to provide such maintenance.

In this respect, the Division is aware that the economic burden is only brought about by the child’s existence. But this is merely a causal link provided by natural science, which in itself is free from value judgments. Even in the case of a ‘longed-for child’, the parents’ duty to provide maintenance is expressed as a burden on their finances without any negative consequence for the relationship between the parents and the child. Moreover, even in cases where the BVerfG has expressly acknowledged the duty to compensate for losses incurred in connection with the birth of a child, the birth must be seen as the ‘source of loss’ intended by the BVerfG, if this expression has any relevance at all to the law of damages (for the different view held by Deutsch, see NJW, 1993, 2361 [2362]). This Division has also contemplated whether in consultancy cases such as this one or in cases of failed family planning, it could, for constitutional reasons, be necessary to acknowledge a claim to fair monetary compensation for immaterial damages on the basis of breach of the parents’ personal rights, as has been considered in academic literature (see Diederichsen, VersR, 1981, 693 [696]; Stürner VersR 1984, 305 and FamRZ 1985, 753 [760 et seq.]; H. Lange, Schadensersatz, 2. edn., Sec!!! 6 IX 7h). However, this point of view does not dispense with a comparison with the situation had the child not been born. A classification as immaterial damage to its parents would have a more direct and graver effect on the child as a person than the ascertainment of the parents’ economic burden for which the doctor must (partially) relieve them. Moreover, as regards questions of liability, such a stance seems rather dubious, since the economic burden arising from the birth of the child would indirectly affect the calculation of compensation, since under this legal concept (damages for pain and suffering) compensation for economic losses is not possible. The differences between economic and immaterial losses would be blurred.

(c) In cases where the burden of the costs of living was meant to be prevented through a contract with a doctor, an economic approach in assessing the burden does not negatively affect the views of the value of the child’s person and existence. According to the compensatory nature of the law of liability and damages, the doctor’s share of the economic burden is reduced to a mere financial obligation which neither taints the child nor questions its right to live. Neither the law nor the practice on damage and compensation links the term ‘damage’ to such negative value judgements; if this were the case it would necessarily be prohibited to classify the birth of a child as damage. The classification of maintenance costs as losses in the relationship between parents and doctor means, however, neither that a value judgment is made in respect of the child nor that its personality is degraded by connection with the term ‘damage’. According to the opinion of this Division, the term ‘ damage’ does not include such connotations which, in the light of the Constitution, would in any case be objectionable. When the BGB was enacted, the legislator deliberately refrained from clearly defining the terms ‘financial and economic losses’ and instead left their interpretation to jurisprudence and the courts. From the very beginning the courts interpreted economic losses as the diminution of assets and the increase of debts, calculated by way of a mathematical comparison between the economic situation brought about by the damaging event and the situation which would have existed had the event never occurred (Großer Senat für Zivilsachen BGHZ 98, 212 [217 et seq.]). This method of calculating the difference through a neutral mathematical operation cannot, however, dispense with an assessment of the various mathematical positions to be employed when calculating the difference; these need to be evaluated according to the protective purpose of all liability and the compensatory function of damages (BGHZ 98, 212 [217 et seq.]) But where a contract with a doctor was intended to prevent the parents being burdened with maintenance costs, and this burden is incurred as a direct result of a breach of contract, the protective purpose of the contract and the purpose of damages as equalisation of burdens demand that it be seen as economic loss. The fact that this balancing of losses cannot result in a ‘negative value judgement’ of the child as a person follows from the above-outlined restriction of the assessment of losses to the economic aspect of the facts of the case. Nor does this comparison under the law of damages between the two economic situations reduce the human existence in a degrading manner to a mere item of accounting and balancing. The comparison is merely the basically value-free method of calculating economic consequences on which the law of damages always relies and whose classification as a mere tool for establishing facts affects the meaning of term ‘loss’. This is the ultimate purpose of the law of damages; to compare economic situations and to provide economically expressed differences for the purposes of the law of liability which then establishes who is responsible for the creation of the burden and to whom it must accordingly be attributed. This function of the law of damages does not involve a negative value judgement of the economic difference as ‘loss’. If compensation is nowadays understood as a just allocation of burdens according to the various criteria of liability, and not as a sanction for damaging behaviour, this Division sees no reason why the classification of maintenance costs as ‘loss’ should be detrimental to the honour of the child.

This Division is rather of the opinion that, especially in cases such as this, granting compensation not only has no detrimental effect on the child, but can rather be beneficial to it, since it improves its financial situation and possibly even its standing within the family. The shifting of the maintenance burden to the attending doctor appears especially satisfactory where, due to his faulty consultation, he is co-responsible for the economic burden which, if a severely handicapped child is in constant need of care, can even threaten the family’s existence. As this Division has previously stated (BGHZ 76, 259 [266 et seq.]), even in cases where the doctor is fully liable for all extra expenditure calculated by means of an economic comparison, the parents are still burdened with the total personal care of the child and also with a certain amount of financial losses and sacrifices which they cannot transfer to the person who created the damage. The Court fails to detect any constitutionally objectionable attack on the honour of the child from this partial economic alleviation of the parents’ burden. Should the parents in fact treat the child badly because they blame it for the additional maintenance costs, such behaviour would not be improved by the legal order refusing to shift some of the burden to the person who, by his breach of contract, created it.

4. As regards consultancy contracts of the kind here under investigation, the compensatory purpose of damages prohibits a restriction of the claim for damages to the amount of extra expenditure incurred by reason the child’s congenital handicap . . .

(b) As this Division has previously stated, a doctor who culpably breaches his duty to provide a proper consultation, and who is therefore liable for maintenance costs, must, within the limits set out by this Division, pay compensation for the entire maintenance costs of the child and not only for the additional expenditure caused by the handicap. After a further review, the Court has decided to uphold its previous opinion even for cases such as the present. As far as liability is concerned, there are no grave differences between the two cases of consultancy. In both instances the parents required medical advice in order not to give birth to a congenitally damaged child. If, in view of the risk of having a second handicapped child, they intended to forego a second pregnancy if the doctor advised them in that direction, it is clear that they would not have given birth to the child had they been correctly advised. According to the parties’ intentions, the scope of protection afforded by a consultancy contract always includes those losses arising from financial expenditure on severely handicapped children which the parents intended to prevent, for themselves and the child, by consulting a doctor. As this Division stated in its decision (BGHZ 89, 95 [105]), these maintenance costs cannot be split into those which are legally expected to be incurred by parents of a (hypothetically healthy) child and the additional costs which stem from the child’s handicap. The necessary expenditure for safeguarding the existence of a severely handicapped child is indivisible. Moreover, this Division is of the opinion that it is irreconcilable with the respect for the child’s person in the sense of Article 1 I GG to measure its existence and the various corresponding needs by using the yardstick of a ‘normal’ child. Compensating the parents for the entire costs of maintenance is thus no disregard of the child’s honour but rather an appropriate means of protecting it from losses, and of guaranteeing such protection.