La vida como daño antijurídico imputable al estado en el marco de las acciones Wrongful Birth y Wrongful Life: (una evolución de la responsabilidad extracontractual del estado colombiano)

Abstract

The provision of an optimal, efficient and timely service is a constant search for the demands of the current population and the progressive development of medical techniques to respond to it places us in a scenario and a higher level of exigency in the diagnoses; Citing the specific area of pre-conception and pre-birth, in the age in which we live and in a case as important as procreation, the obligatory content of the professional in health is expanded, and as a consequence, there is a directly proportional increase in Responsibility, reflected in the number of claims related to error in diagnosis, lack of information and / or timely treatment, which degenerate into the birth of children with malformations, physical and mental defects or deficiencies in general. The simple evolution of the medical field has led to the claim of reparation of new types of damages, among them, the damages associated with birth or life. The actions of wrongful birth and wrongful life generate all kinds of controversy at the time of being studied, they have been mainly developed in the civil field and there is jurisprudence referring to the subject at national and international level, besides doctrinantes with postures in favor and against ; But when talking about its application to public law, studies fall short; What happens then if in some circumstance it is the State that with its act configures the existence of the same? The purpose of this article is to analyze the possibility of compensating the damages caused as a result of a malpractice by the state, an alleged noncontractual liability for failure in the service that generates benefits in favor of families that have been injured their interests by a Action or omission that specifically degenerates into a birth or a life that in the eyes of those affected, could and should have been avoided.