Ofrivillig graviditet - slarvigt eller oundvikligt? - Om tillverkare av digitala preventivmedels ansvar för ofrivilliga graviditeter
Sammanfattning: In 2018, a digital contraceptive app came to attention in Swedish media, due to claims that the app was inefficient as a contraceptive and that it had led to an increased number of unintended pregnancies. The main purpose of digital contraceptives is to prevent pregnancies by measuring safe periods during the user’s menstruation cycle. Generally, the user has been blamed for negligent use of the contraceptive app if the user has become unintentionally pregnant, but if the manufacturer promises protection and fails to provide it, should the consumer bear full responsibility? The purpose of this thesis is to examine whether an unintended pregnancy can constitute a damage, if digital contraceptives can be considered as products or pharmaceuticals and if manufacturers of digital contraceptives are liable for compensation to users who have become unintentionally pregnant. By using the legal dogmatic method, the thesis examines three parallel frameworks which regulate liability and compensation in different situations, namely the Product Liability Act, the Tort Liability Act and the Swedish Pharmaceutical Insurance. Users who become unintentionally pregnant due to the inefficiency of digital contraceptives may have suffered both personal injury and pure economic loss. An unintended pregnancy constitutes a personal injury if it can be considered to be a psychological or physical defect on the part of the woman and the defect has to have shown a medically detectable effect. Regarding compensation for pure economic losses, the child has to have been born and the mother has to have suffered financial losses because of the birth for financial compensation to be possible. This thesis finds that manufacturers of digital contraceptives may be liable for damages according to the Product Liability Act and the Tort Liability Act, but not according to the Swedish Pharmaceutical Insurance. The insurance does not encompass digital contraceptives because they cannot be considered as pharmaceuticals. An injured party can claim strict liability or negligence by the manufacturer. However, the injured party must bear the economic risk of seeking compensation. Due to the lack of case law regarding product liability and digital contraceptives, it is possible that a different assessment could be made in practice. In theory, however, manufacturers are liable for unintended pregnancies caused by inefficient digital contraceptives.
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