Medical Liability and Unwanted Birth Damage: Commentary on Order No. 1903 of 2025

The recent Order No. 1903 of January 27, 2025, by the Supreme Court of Cassation offers important clarifications regarding compensation for unwanted birth damage, a topic of significant current relevance and sensitivity. The ruling, signed by President F. De Stefano and rapporteur P. Gianniti, focuses on the civil liability of physicians in relation to voluntary termination of pregnancy, emphasizing the crucial role of information provided to patients.

Context of the Ruling

The Court ruled on a case where the pregnant woman claimed damages, asserting that she had not been adequately informed about the possibilities of terminating her pregnancy. According to Italian law, specifically Article 6 of Law No. 194 of 1978, voluntary termination of pregnancy is lawful only under specific circumstances. However, if a physician fails to provide the necessary information, they may be held liable for the woman's inability to exercise her right to choose.

The Ruling's Maxim

Unwanted Birth Damage - Voluntary Termination of Pregnancy - Prerequisites - Burden of Proof - Presumptions - Requirements. In the context of compensation for unwanted birth damage resulting from medical liability, since voluntary termination of pregnancy is lawful in exceptional circumstances, the mother's inability to choose to terminate the pregnancy, attributable to the negligent lack of information from the attending physician, can be a source of civil liability provided that: a) the regulatory prerequisites of art. 6 of law no. 194 of 1978 are met; b) the woman's intention not to carry the pregnancy to term is evident. The burden of proof rests with the pregnant woman, but it can also be discharged presumptively, provided that the prerequisites of the empowering circumstance have been timely alleged and the requirements of gravity, precision, and concordance referred to in art. 2729 of the Civil Code are met.

Burden of Proof and Presumptions

A crucial aspect of the ruling is the burden of proof that falls on the pregnant woman. It is essential for the woman to demonstrate her intention not to carry the pregnancy to term and that this impossibility was caused by a lack of information from the physician. However, the Court admits that this proof can also be provided presumptively, provided that certain requirements of gravity, precision, and concordance, as established by Article 2729 of the Civil Code, are met.

Conclusions

Order No. 1903 of 2025 by the Supreme Court of Cassation significantly clarifies the delicate balance between women's rights and the responsibilities of healthcare professionals. It recognizes that a lack of information can constitute a violation of the pregnant woman's right to choose, opening the door to potential compensation claims. It is essential that women are fully informed about their rights regarding pregnancy termination so that they can make informed and free decisions. The ruling represents an important step towards greater protection of women's rights in the healthcare sector.