Abstract

BASTIDAS GOYES, LUIS GUILLERMO  and  RUEDA BARRERA, EDUARDO ALFONSO. The Acceptability of Wrongful Birth Actions within Jürgen Habermas' Discursive Theory of Law. Estud. Socio-Juríd [online]. 2020, vol.22, n.1, pp.145-174. ISSN 0124-0579.  https://doi.org/10.12804/revistas.urosario.edu.co/sociojuridicos/a.7633.

This article examines the acceptability of wrongful birth (WB) actions based on Jürgen Habermas' discursive theory of law. Initially, it is described how different genetic tests are used nowadays to inform reproductive decisions. Then, it delimits legal cases of abortion requests, in contexts where abortion is legal because of embryo and fetus problems unknown to their parents as the lex artis ad hoc was not followed in pre-conception, pre-implantation, and prenatal diagnostic procedures. After that, the article presents the explanation of the reasons that Habermas, in the debate with Thomas McCarthy, suggested for evaluating the legitimacy of the norms and judicial decisions in terms of foundation discourses and their application. Finally, the consequences arising from these arguments are considered to assess the admissibility of this type of lawsuits.

Keywords : Genetic tests; reproductive decisions; wrongful birth; Habermas' discursive theory of law; legitimacy.

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