Language:
Hebrew
Year of publication:
2022
Titel der Quelle:
משפטים
Angaben zur Quelle:
נא,3 (תשפב) 1033-1057
Keywords:
Wrongful life
;
Abortion Religious aspects
;
Judaism
;
Judicial process
Abstract:
he wrongful birth cause of action allows the parents of a childwith a disability to sue a doctor for neglecting to provide detailsof the risks and chances of such a birth, thus leading to the birthof a child with a congenital disorder; if the doctor had not beennegligent the parents would have chosen to abort. Judges hearing suchsuits filed by religious parents whose religion prohibits abortion haveraised concerns about raising the standard of proof of the causalconnection component. As a solution, a rebuttable presumption wasproposed in the Hemmer case, according to which if the abortioncommittee approved an abortion the couple will be presumed to haveopted to abort, despite their religious beliefs that forbid abortion. Theburden of rebutting the presumption would lie on the defendant.This article seeks to show why this presumption may not achieve its goal,in light of the cognitive bias known as the “basic attribution error”.According to this bias, when attributing reasons for behavior there is ahuman tendency to give greater weight to a person’s internalcircumstances, such as religion, than to external circumstances. Throughan analysis of the judgement in Meuhedet, I will argue that a judgeimplementing this presumption in the case of a religious parent might“nullify” it because of the tendency to attribute greater weight to theparents’ religious convictions, as if they were the main circumstanceinfluencing the decision to abort or not, and less weight to externalcircumstances, such as explanations given by the doctor to the couple.At the end of the article, I will discuss the problematic implications of thebias described, show that research suggests that raising awareness of thepossibility of this bias is helpful in dealing with it, and present ways toreduce its negative effects. Following Ruth Bader Ginsburg’s remarkabove, the purpose of this article is to raise awareness of the possibility ofbias, in a way that will make it easier to deal with until a more appropriatesolution is reached.
Note:
With an English abstract.
URL:
אתר את הפרסום בקטלוג המאוחד של ספריות ישראל
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