Claims by a Fetus as a Close Relative for Non-Pecuniary Damages in the Event of Death or Serious Bodily Injury under Turkish, Swiss and German Law
Ankara Üniversitesi Hukuk Fakültesi Dergisi, vol.75, no.2, pp.1287-1332, 2026 (TRDizin)
- Publication Type: Article / Article
- Volume: 75 Issue: 2
- Publication Date: 2026
- Doi Number: 10.33629/auhfd.1945047
- Journal Name: Ankara Üniversitesi Hukuk Fakültesi Dergisi
- Journal Indexes: TR DİZİN (ULAKBİM)
- Page Numbers: pp.1287-1332
- Open Archive Collection: AVESIS Open Access Collection
- Yozgat Bozok University Affiliated: Yes
Abstract
In cases of death or serious bodily injury, claims by close relatives for
non-pecuniary damages are governed by Article 56(2) of the Turkish Code of
Obligations. In Swiss and German law, such claims in the event of death are
regulated under Article 47 of the Swiss Code of Obligations and § 844(3) of
the German Civil Code. However, none of these provisions expressly address
whether a fetus may assert a claim as a close relative.
Within the framework of the subjective concept of non-pecuniary
damage prevailing in Turkish and Swiss law, it is recognized in both case law
and legal doctrine that a child born alive (formerly a fetus) has such a claim.
By contrast, although the subjective approach likewise prevails in German
law, the issue remains disputed; the Higher Regional Court of Munich, in its
2021 decision, denied such a claim.
This study argues that a claim for non-pecuniary damages by a fetus as a
close relative cannot be convincingly grounded in the subjective concept of
non-pecuniary harm, but is only justifiable under an objective conception. In
German law, the recognition of such a claim would require an explicit
legislative amendment to § 844(3) of the German Civil Code.