This article is written by Samarth Agarwal.
Table of Contents
“For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and therefore, wherever a new injury is done, a new method of remedy must be pursued.” -W. Blackstone
The society which we live in takes account of the cardinal importance of the human life. Thus, the right of a child to be born healthy without any deformities is indubitable. Over the years, the judicial system has taken note of the right of an infant to be born healthy and also the right to be compensated for any injury that arises due to the negligence of another person prior to its birth. This judicial cognizance has led to the inception of a new field under Tort Law.
Historically, one can note that the legal protection provided to the unborn children was limited in nature and was also subject to the live birth of the child. The early common law considered the unborn child to be a part of the mother and any damages for any injury inflicted upon the foetus prior to its birth could only be recovered by the mother. However, over the period of time, expansion of jurisdictions has happened significantly and this has led to the expansion of the scope of legal protection accorded to the unborn. Not only has the judiciary dealt with third party liability with respect to pre-natal injuries but has also created a potential new cause of action i.e. tortious liability of the mother in case of pre-natal injuries to the child. Additionally, Different jurisdictions all over the world have recognized the duty as well as affixed liability on the part of the mother for pre-natal injuries to the unborn child heterogeneously.
This research paper deals with the subject of tortious liability of mother for pre-natal injuries of the unborn child. It throws some light upon the overview of pre-natal injuries and its origin in Tort law and also answers the legal status of an unborn child. It discusses the Mother’s liability for pre-natal injuries and the associated topics in length. It also mentions the position in India and suggests the extent of standard of care to be taken by the mother.
Evolution of pre-natal torts
The principle of protecting the interests of an unborn child has been recognised by the Common Law for a long time now. The issue with respect to pre-natal injuries and the infant’s right to recover damages for the injuries suffered was first dealt by the American judiciary in the case of Dietrich v. Inhabitants of Northampton. However, with this case arose a discrepancy in the law as on one hand, the law allowed an unborn child to enforce its rights pertaining to property, on the other hand, the law did not provide any remedy to the child for suffering pre-natal injuries while in its mother’s womb. In this case, a four to five months pregnant woman fell and got injured while walking on a defective highway under the management of the defendant. As a result of the fall, she suffered a miscarriage and the premature child could only survive for ten to fifteen minutes. Subsequently, an action for wrongful death was contended on behalf of the deceased child. Justice Holmes, in this case, argued that an unborn child does not have locus standi in the court and is a part of the mother at the time of infliction of injury which resulted in its death. The case was dismissed on the ground that no civil duty could be owed to an individual not yet in being. This decision remained uncontested in the American Jurisdiction for the following several years.
In another case, in 1891, the effect of the rule established in the Dietrich case was greatly augmented. Here, a pregnant woman while travelling in the railways was injured due to the negligence of the driver. As a consequence, the baby born harboured permanent injuries as a suit was filed against the driver. The court in this case explored the status of an unborn child through several cases and commentaries in common law. Even though the court acknowledged that the privileges to an unborn child resonates with that of other persons, it concluded that the defendant only owes a duty of care to the mother and not to the unborn child. One can easily surmise that the court was not willing to explore an uncharted territory and merely reinforced and preserved the rule in Dietrich case by reiterating the non-existence of an unborn child as a person.
Next, one of the most landmark cases dealing with the concept of prenatal injuries and deprived Dietrich was Allaire v. St. Luke’s Hospital. In this celebrated case, a pregnant woman had sustained injuries due to the faulty and negligent operations of the defendant’s hospital and as a result, the child was born with permanent physical injuries. Consequently, a suit was filed on behalf of the child. The court echoed the principle established in Dietrich that an unborn child is part of her mother and is only severed from her at birth. It noted that there did not exist any authority supporting the existence of a legal duty to an unborn child.
However, the dissent of Justice Carroll C. Boggs in this case was considered to be the first and the one of the strongest oppositions to the principle of no liability for pre-natal injuries. The dissent in no way contradicted Justice Holmes’ in Dietrich case but merely reasoned that no duty of care could be owed to the infant as the foetus was unable to survive premature death. He differentiated Allaire case from the Dietrich case on the basis of the concept of viability i.e. the period of intrauterine development when an infant is able to live outside its mother’s womb and argued that the foetus in Allaire case had a separate identity and was thus owed a duty from the moment it became viable. Thus, he held that a child who is born alive should have a right of action for the prenatal injuries that it sustained while being a viable foetus. He also laid the base that the law should exist with the medical advances side by side and questioned the common law which would hold a person accountable for the death of the unborn but would not absolve the person from any liability if the child survived the injury. Although the dissent was considered to be of prime importance, it failed to convince the jurisdictions to allow a cause of action for pre-natal injuries.
In the case of Montreal tramways v. Leville, although the Canadian Supreme Court decided the case chiefly on the basis of the civil law of Quebec, it also observed the prevalent position of common law and signalled out the legal frailty of Justice Holmes position. It was held in this case that a child having no right of action for pre-natal injuries amounts to an injury without a remedy. It also pointed out that even though the father is permitted to seek compensation for the loss he has sustained and the mother for what she has put up with, the child is prohibited from seeking compensation for the wrong against itself. Denying the right of action an infant would imply that he would be suffering for the wrongs committed by some other person.
The court held that a child, born alive and viable, should be allowed to maintain an action in the Courts for injuries wrongfully committed upon its person while in the womb of its mother. Despite the argument put forth by the Canadian Court in 1933, it took the United States more than a decade to identify the right of an unborn child to sue for pre-natal injuries and change the ruling of Dietrich Case.
The following years after the Allaire decision observed unanimity in denying an unborn child the right of action for prenatal injuries. However, one of the most remarkable judgements in this area of law which put an end to the rule evolved in the Dietrich case was Bonbrest v. Kotz.
The court reverberated the dissent of Justice Boggs in the Allaire case and delineated it from the Dietrich case by stressing the viability of the child in the case at bar. The court pointed out that Holmes, in his Dietrich opinion, denied that the existence of a right of action of infants before it was able to live separated from its mother. In this case, the child was viable i.e. it had the ability to live in separation from its mother’s womb. The court in this case also negated the argument of difficulty of proving the injury to an unborn child. Thus, the idea that was first put forward in Allaire’s dissent was reinforced in this case, subsequently influencing every court to revisit and reject the rule established in the Dietrich case.
Thus, the principle that a viable foetus is not a part of its mother and exists as a separate individual, capable of life and being owed a duty of care was finally recognised by the common law system in 1946 which overruled the proposition in the Dietrich case. Subsequently, after Bonbrest, a sway of cases recognised and granted a cause of action to a viable foetus for pre-natal injuries. The courts, without any restraint, started rejecting the doctrine of nonliability established by the Dietrich decision. Hence, the rule established in the Dietrich case couldn’t survive the test of time and eventually got replaced with the Bonbrest rule which held a person responsible for prenatal injuries to an infant. Thus, this is how the concept of the liability for pre-natal injuries evolved and third person’s duty came into existence. Thus, affixing liability of a third party enabled the courts to deal with this subject in depth and also opened the doors for the court to deal with the subject of maternal liability for pre-natal injuries.
Liability of mother in case of pre-natal injury
Mother’s role in causing prenatal injuries
There are various factors which result in the occurrence of pre-natal injuries namely heredity, environmental factors or combination of both. A foetus receptivity to its mother’s anatomic and metabolic environment is important for the child to be born healthy. Maternal negligence has been one of the leading sources of pre-natal injuries in children. The most common situation that arises out of maternal negligence in which the mother is held absolutely liable for a pre-natal injury is physical accidents ranging from household negligence to negligence while driving a vehicle. Although the womb provides safety to the foetus, any direct physical contact which has severe effect on the mother’s womb may seriously affect the unborn infant and therefore it is the duty of a pregnant woman to refrain from any such activity that results in killing or injuring the foetus by consciously choosing her actions so that they do not incur any risk on the unborn child.
One of the most important and influential environmental factors in the span of foetal life is nutrition. A maternal diet that lacks essential nutrients is severely harmful to the unborn child as the development of foetus is dependent upon proper protein, mineral, vitamin, and caloric consumption. Substandard nutrition during pregnancy, particularly a protein-deficient diet, most commonly impairs brain development. Thus, in order to ensure that the foetus doesn’t have any pre-natal deformities and there is proper growth and development of the baby, it is the duty of the mother to take food enriched with essential nutrients.
Next, it is imperative to note the effect of drug abuse and alcohol consumption by the mother on the unborn child. There exists a strong nexus between the voluntary ingestion of drugs during pregnancy and congenital malformations. Any form of drugs including prescription, non-prescription, illegal drugs harm the foetus and lead to grave malformations. Sedatives, tranquilizers, heroin, and morphine also have a huge impact on an infant’s mental and physical health. Children who are born to Women consuming heroin and other drugs suffer from chronic restlessness, tremors and convulsions. Sudden withdrawal from drugs by the mother during pregnancy results in the inability of the child to cope with addiction resulting in the child suffering from intense and extreme distress.
Likewise, a mother’s excessive consumption of alcohol during pregnancy may result in Foetal Alcohol Syndrome where a child develops congenital malformations and affects an infant’s weight, ultimately leading to pre-natal growth retardation. Cigarette smoking also has a terrible impact on the health of an unborn child as it results in reduction in oxygen circulation in the body which further leads to a decrease in oxygen supply flowing to the foetus. This deprivation of oxygen leads to impairment in the foetal growth which results in low birth weight babies.
Hence, it is evident from the above discussion that the actions of a mother has direct impact on the unborn child and therefore it is the duty of the mother to not act negligently and take proper care so as to protect the life of the unborn child as the actions of the mother not only has an effect on her body but also has an adverse effect on the body of the child inside her.
The doctrine of parental immunity and its abrogation
The doctrine of parental immunity in tort is an outcome of Judicial pronouncements and is outlined to preserve family harmony, parental authority and prevent fraudulent claims. The doctrine of parent-child tort immunity was simply a rule that actions between parents and their minor children would not be allowed for personal injuries, whether sustained from intentional actions or negligence. There did not exist any provision barring a cause of tortious action by a child against his/her parents prior to this. This doctrine safeguards a parent from a tortious action by a constrained minor and may also be taken as a defence by the parents or the mother against the child’s claim for pre-natal torts. Initially, this doctrine provided a complete shield to the parents against a child’s suit and finds its roots in three cases popularly known as the “Great Trilogy.”
The first case in this regard is Hewlett v. George, where Hewlett, the minor daughter instituted a civil suit against her mother for wrongly confining her in a demented asylum. The court observed the facts and stated that since the daughter was married, the parent-child relationship had dissolved, allowing the plaintiff to maintain an action against the parent. The court stressed upon the traditional obligations of parents and their children and found that certain reciprocal duties existed between the two such as parent’s duty to ‘take care’ and ‘guide’ the child and the child’s duty to ‘aid’ and ‘obey’ the parent prevents the maintenance of such an action, prevent the maintenance of such an action. Lastly, the court pronounced that a child cannot maintain a civil suit against its parent. Thus, one can easily infer that the court’s intention, in this case, was to maintain a stable, family-oriented society.
The ruling of Hewlett court was dilated in the successive two cases. In McKelvey v. McKelvey, a suit was filed by a minor child against her parents for inhuman treatment and cruelty. The court, giving much attention to policy justifications and the importance of family harmony dismissed the suit. Analogizing a parent-child relationship with that of a husband and wife, it contended that the just as there is a unity between husband and wife by virtue of their marriage and can only sue each other after this relationship breaks, similarly, there exists a bond between a parent and a child and a child can bring a suit against its parents only after the family relationship has ended.
The final case of the trilogy i.e. In Roller ex rel Million v Roller is a paradigm of the inequitable consequences as a result of adherence to the doctrine of parental immunity. Here, a fifteen-year-old girl who was raped by her father filed a suit in the Supreme Court of Washington. The court, however, dismissed the suit stating that there did not exist any cause of action for civil damages against the father. In this case, not only did the court deny the claim of the minor child on the grounds of public policy with reference to Hewlett’s decision, but it also took note of two other explanations pertaining to the doctrine of parental immunity. First, the court recognised the financial welfare of the other minor as well as dependent members of the family. It feared that allowing action by a child to recover damages from its parents may infringe upon the rights of the other minor children to enjoy the potential share of parent’s wealth. Second, the court argued that even if it were to allow a minor to recover the damages from the parents the, in cases where the child dies, the parents who are the legal heirs but also the culprits might receive the judgement back. For several years after these three cases, the civil courts followed this doctrine and denied a minor the right to recover from its parents.
However, the justifications and arguments put forth to avert recovery by a child from its parents seems archaic in today’s time. The society has evolved tremendously leading to a change in the needs of the community as well as structure of the family. Therefore, it becomes imperative to review the basic notion of justice and understand the advancements made in various fields like transportation and communication, science etc. in the recent years, various jurisdictions all over the world have traced the fallacies and inequities of the doctrine of parental immunity. Much of this judicial distaste has arisen because the doctrine can be employed as an umbrella rule that prevents recovery to an entire class on the sole ground that they are minors, and any suit by them against their parents would dissolve family harmony. Modem courts have questioned the early rationale that preservation of family harmony and domestic relations requires that a child be denied recovery for injuries caused by a parent.
It was in 1963, in the landmark case of Goller v. White, Wisconsin Supreme Court for the first time abolished the doctrine of total parental immunity. However, it maintained immunity in two areas a) where the alleged negligent act involves exercise of parental authority over the child and b) where the alleged negligent act involves exercise of parental discretion in providing food, shelter etc.
In another case, it was explicitly stated that the correct approach to address the modern conditions and conceptions of public policy is the repudiation of parental immunity. The court further held that just like other people, a child also enjoys the same right to protection and legal redressal against wrongs committed to itself and this right should not be abolished or rescinded at any cost except strongest reasons, grounded in public policy, justify the limitation.
However, this doctrine has been rejected by many modern courts as it completely restricts the minor’s cause of action. This doctrine leads to denial of a child’s right to seek a tort remedy against his/her parents for the pre-natal injuries caused due to the negligence of the parents. Therefore, the abrogation of parental tort immunity combined with the recognition of a child’s right to recover for prenatal injury creates the very real possibility that a mother could be held liable for her negligent conduct during pregnancy. This doctrine has been directed to safeguard the family relations and puts it on a higher pedestal as compared to the rights of the unborn child.
Position of mother’s liability for pre-natal injuries in various jurisdictions
United States of America
The issue concerning mother’s liability was first discussed in Grodin v. Grodin, where the Court of Michigan recognized a mother’s duty to her foetus. Here, the child sued his mother claiming that it was due to his mother’s negligence in taking the correct prescription drug which caused the discolouration of his teeth. The Court, referring to two cases, one where child’s right to recover for prenatal injuries after birth was recognised and the other where court affixed limited parental immunity with respect to acts of reasonable parental discretion regarding food, clothes and medicine, held that a mother cannot do anything unreasonable that would result in injury to the foetus. It also equated the liability of a mother towards her child with that of a third person.
However, this principle was rejected by the Supreme Court of Illinois in Stallman v. Youngquist, where the daughter (plaintiff) filed a suit against the mother (defendant) alleging that the mother’s negligent driving caused prenatal injuries to the plaintiff. The suit was initially dismissed by the trial court on the ground of application of parent-child tort immunity in this case. However, the judgement was reversed by the Supreme Court stating it unnecessary to address the issue of parental tort immunity. The court concluded that liability cannot be imposed on the mother for prenatal injuries as that would be against the pregnant women’s interest in privacy and bodily integrity and it would be very difficult to establish a uniform standard of care. The difficulties of administering foetal-maternal tort suits, and the dangers such liability presents to the constitutional rights of women, outweigh any putative compensation and deterrence benefits that such suits might bring.
Next, the Arkansas Supreme Court dealt with the issue of whether a mother could be liable for the wrongful death of her foetus. In this case, due to mother’s negligent driving, she along with the viable foetus died. Since Arkansas still recognizes parental tort immunity for unintentional torts, ” the Carpenter court held that a mother could not be liable to a foetus for the mother’s unintentional tort. Arkansas law, however, does provide an exception to parental immunity and imposes liability for wilful conduct by a parent that causes injury to a child.. The United States position appears open to argument depending on the State in which the action is brought. Thus, it can be sufficient that in the US there doesn’t exist a uniformity of law in this regard as each state has autonomous power. While Some states have imposed liability on the mother, others have absolved the mother from any liability on account of the doctrine of parental immunity.
In Canada, the question of liability of a woman who by negligence causes prenatal injuries to the child in her womb was answered in Dobson v. Dobson in 1999. Here, the child suffered from permanent physical and mental impairment due to the prenatal injuries caused to it as a consequence of the negligent driving of the mother and filed a suit seeking compensation for the same. The court ruled that, while a foetus has certain rights against third parties that materialize upon birth, a child cannot sue its mother for injuries caused prenatally by the mother’s negligence. As the courts in Canada are required to abide by the public policy while assessing the duty of care, they are restricted to impose such liability on the mother as the public policy recognises the relationship between the pregnant mother and her foetus as a special and unique one. It also contended that since every act or omission on the part of the mother will have an impact on the foetus, recognition of the duty of care of the mother to the unborn will potentially amount to intrusion upon woman’s liberty and power to make autonomous decisions. It also found that the primary objectives of law of Torts are compensation and deterrence, imposing liability on the mother for prenatal negligence would neither provide compensation nor deterrence. Lastly the court addressed the argument of imposing liability on mother for motor vehicle accidents only. It held that if mother’s duty of care is affixed in the motor accident cases, there would be a risk that the duty would be imposed in other cases also leading to imposition of unreasonable obligations upon the pregnant woman. to apply common law liability for negligence generally to pregnant women in relation to the unborn is to trench unacceptably on the liberty and equality interests of pregnant women.
Therefore the decision of the Supreme Court of Canada established that while a foetus has certain rights against parties that materialise upon birth, a child cannot sue its mother for injuries caused prenatally by the mother’s negligence.
Thus, various cases in Canada which provides immunity to the mother from any liability with respect to pre-natal injuries. However, it is contended that the providing immunity to the mother has several risks associated with it out of which the primary risk is that denial of compensation to the child for pre-natal injuries caused by the mother might also result in the denial of compensation from third parties.
In England, there exists the Congenital Disabilities (Civil Liability) Act, 1976 that absolves the mother from any liability for congenital disabilities. However, there exists an exception to this rule according to which the mother will be held liable for causing prenatal injuries to their unborn child if the injury occurs due to negligent driving of the mother or motor vehicle accident caused by the mother. However, in case of motor accidents also, the liability of the mother is limited and cannot be extended beyond the confinements of their insurance policies. The primary aim of imposing liability on the mother in cases of motor vehicle accidents is to be in sync with the compulsory passenger insurance in England. It was considered that the children who suffer pre-natal injuries due to mother’s negligence in driving should not be singled out as the one class of blameless victims of negligent road accidents to be unentitled to compensation as per the Road Traffic Act. The Congenital Disabilities (Civil Liability) Bill was proposed by the Law Commission and was introduced in the House of Commons on December 17, 1975 as a Private Member Bill, the provisions of which, though to some extent foreshadowed by recent common law decisions, in certain important respects departed from the principles which a logical application of common law rules. The Bill received Royal Assent on July 22, 1976 and the Bill became Act.
Most argued defence for denying the child a claim against his mother is that such a right of action might be a potent weapon in such matrimonial dis- putes as custody and, as insurance to cover such liability seems unlikely, the corresponding lack of compensation would increase the bitterness and tension already existing between child and mother. Thus, while jurisdictions such as that of America have recognised the maternal liability in case of pre-natal injuries, the UK has absolved the mother from any kind of liability for pre-natal injuries except in the cases of motor vehicle negligence.
In Australia, the question with respect to the imposition of a mother’s duty of care to her unborn child is still unsettled. The question of whether a universal duty of care is imposed on a mother to her unborn child is as yet unsettled. In the case of Watt v. Rama, a collision happened between two motor cars, one of the drivers, who at the time of the accident was a pregnant woman was severely injured and as a consequence gave birth to a child with pre-natal injuries including brain damage and epilepsy sustained at the time of the accident. A suit was filed on behalf of the infant against the other driver and the question that the court had to answer was whether the defendant owed a duty of care not to cause injury to the plaintiff, who at the time of the accident was unborn. It was argued that since person is liable for injuries they cause to an unborn child i.e. a foetus has legal rights that transpires when the child is born alive and the Australian defendants are liable for tortious behaviour causing injury to the members of their family, as intra-familial immunity from tort liability does not exist in Australia, One may logically extend these principles that a mother can be liable for injuries to her unborn child caused by her own prenatal negligence. However, no concrete establishment has been there regarding this field.
The New South Wales Court of Appeal in Lynch v Lynch considered a situation where negligent driving by a mother caused her child to be born with cerebral palsy. Although policy considerations concerning the mother’s right to privacy and autonomy were raised by the defendant and considered by the court, the court found that the question before it was narrow, and confined to whether a mother could be liable for injuries to her unborn child caused by her negligent driving. In deciding whether she could be held liable, the court noted that people injured in motor vehicle accidents deserve compensation, and that a mother will always be insured in such situations. Whether a child could sue its mother for prenatal injury in circumstances other than negligent driving was left open. The same conclusion was reached by the Queensland Court of Appeal in Bowditch v McEwan, where it was found that a mother owes a legally enforceable duty of care to her unborn child that will be breached by negligent driving.
An application of the fundamental principles of Australian tort law generates the prima facie result that a mother does owe a duty of care to her unborn child. While the Australian courts have not found that a general duty of this kind exists, a duty has been imposed in the case of negligent driving. Moreover, a universal duty has never been rejected. There are, indeed, many policy factors to be considered in this area, although none are so clear or compelling as to require the judiciary to depart from long-established common law principles of negligence to strip a child of its legal right to compensation.
Although there doesn’t exist any statute dealing with pre-natal injuries in India, India courts have recognised the legal status of an unborn child in the womb. It was held in Union Carbide Corporation v. Union of India, that if an unborn child is able to show that he suffered prenatal injuries due to the leak of gas in the Bhopal gas tragedy, he/she will be entitled to seek compensation from the defendant. However, In the pre-Independence era,, British established courts in India which followed the common law and the statutes of England. In India, the tort law has been derived from English common law and has been continued in India by Article 372 of the Indian Constitution, 1950. The law of torts has been elaborated in a substantial manner in various big nations namely USA, Canada and Australia who have dealt with numerous cases in this field since early times. The findings and evolution in these countries has a great influence on decisions in India. Thus, with regard to fixing the liability of mother in prenatal cases in case of negligence, three options are available with the Indian courts. First, holding the mother absolutely liable for negligence in all cases. Second, fixing the liability of a mother at a standard lower than that of a third person. Third, holding the mother liable for negligence in motor vehicle accidents. However, it is imperative to note that the Motor vehicles Act, 1988 of India makes it mandatory for the owner to undertake third party liability which has been limited by the judicial opinion to the person outside the vehicle. Consequently, neither the person driving nor the sitting in the car can claim insurance coverage. Due to Motor Vehicles Act, 1988 and the insurance regime one can certainly say that motor accident cases are totally cordoned off from the general tort law. Thus, the Indian courts are left with two options, either holding mother absolutely liable or fixing a reasonable standard of care.
Affixing the standard of care of mother
Since time immemorial, the courts have imposed a duty on the tortfeasor towards a determinate person or human being. Initially the courts recognised the liability in case of pre-natal injuries in case of third parties only when the injury resulted in the death of the unborn child and did not recognize the liability in cases where the child survived. Although, the laws all over the world did not recognize a foetus as a determinate person having a legal personality in early times, however, the fictional relationship between the tortfeasor and the viable foetus has been recognised over the time. The issue that came up before the courts was to affix the legal relationship between the acts of a pregnant woman and the injuries borne by the unborn child and also identify the extent of the responsibility of a woman towards her unborn child. Affixing the responsibility of a woman seemed to be necessary by the courts as it felt that this liability on the part of the woman played the foremost role in determining to what extent the woman had control of her actions during pregnancy.
While the traditional cases like Grodin dealing with this subject were able to reach a correct conclusion, they failed to deeply analyse this emerging area of the Law of Torts. In these cases, the courts identified and equated the standard of care to be taken by the mother with that of the standard of care to be taken by a third person. Although equating the liability of a mother to that of a third person represents a mechanically correct convergence of current law regarding parental immunity and recovery for prenatal injury, it fails to take into consideration the uniqueness of the foetal-maternal relation.
Currently, in most of the jurisdictions, there doesn’t exist a well- defined and uniform standard of care of mothers towards the unborn child.
Reasonableness of mother’s conduct plays the primary role in deciding whether or not proper care has been taken. A conduct becomes unreasonable when the damage involved if foreseeable but the defendant fails to act to prevent it. Therefore, it is imperative to determine whether the act of the defendant was unreasonable and as a result of that act, the plaintiff suffered damages. In the case of the mother, when she undertakes any activity, she also undertakes the duty of taking reasonable precautions to protect the foetus from injury. Thus, there exists a negative duty on the part of the mother to not expose the unborn child to unreasonable dangers.
There are numerous factors that have an effect on determining a legal duty namely foreseeability, public policy considerations and extent of burden. First, Foreseeability plays an important role in affixing the legal duty as foreseeability guides the practical conduct of a person. The extent of duty of care to be taken by the mother is directly proportional to the foreseeable consequences or injuries that an unborn child may suffer. Second, after determining the foreseeability, it is important to affix the extent of burden on the mother. The burden on the mother should extend to only those injuries that are direct and foreseeable. Thus, the extent of burden on the mother should be reasonable. Third, public policy considerations are also of prime importance while recognizing the legal duty of mothers. There are two schools of thought in this regard. While one school of thought is that is to held the mother liable for negligence to the same extent as that of a third party, resulting in correct fixation of liability on the tortfeasors, other school of thought considers that parental duty would be that of deterrence.It becomes very important that the courts adopt the policy of case by case analysis while developing the parameters pertaining to maternal liability.
Another important factor that needs to be taken into account is finding the correct balance between Maternal liability towards unborn children and protecting the rights of mothers. The idea of imposing liability on mothers for pre-natal injuries has faced severe opposition that imposition of duty of care on the mother restrains the woman’s privacy and personal autonomy with respect to her pregnancy. It was in Roe v Wade, the US Supreme Court had recognised the foetus as not a person so that the woman’s fundamental right of liberty and privacy are not infringed.
However, the supporters of holding the mother liable contend that some women are very negligent or have the habit of substance abuse shall not act in the best interests of the unborn child leading to the child suffering from pre-natal injuries.They also argue that the court in the Roe decision stated that the right to privacy of a pregnant woman is not absolute as there also exists a potential life inside her body.
Since a mother’s body during pregnancy plays an important role in the development of an unborn child, there needs to be a fine balance between the mother’s duty to the unborn child and the rights of a pregnant woman. While determining the extent of care to be taken by the mother, it is important that the risks associated with the mother not taking proper care are analysed. One must balance the risk of harm to the foetus, in the light of the social value of the protection of potential life and the probability and extent of such harm, against the value of the interests of privacy and personal autonomy of the mother.
Additionally, to achieve a more appropriate equilibrium between the interests of the woman and child, it is important to assess whether gross negligence was committed by the mother. Ascertaining whether mother was grossly negligent in taking care of the unborn child due to which the child suffered from pre-natal injuries proves to be an effective way in striking an appropriate balance between protecting mother’s privacy and liberty interests from undue restriction. Thus, the most probable standard of care that can be adopted with respect to a mother is that of a reasonable pregnant woman. Since there exists a unique relation between the mother and the unborn child, it is not desirable to equate the standard of care of a mother with the standard of care of a third-party and hence in conclusion, it is proposed that the maternal liability for pre-natal injuries should be affixed at the level of reasonable standard of care.
Over the years, there has been a drastic change in the law of prenatal injuries and various jurisdictions all over the world have recognised and attempted to protect the interests of an unborn child. The abrogation and elimination of parental immunity has provided the children a chance to seek damages from the parents, especially the mother for prenatal injuries. However, the position in this regard is different in different jurisdictions. While Canada has provided complete immunity to a mother, England’s Congenital Disabilities (Civil Liability) Act, 1976 imposes maternal liability for prenatal injuries caused in Motor Vehicle Accidents. The US, on the other hand, has different positions in different states. While some states have affixed the liability of a mother to that of a third person, parental liability in other states doesn’t exist due to the existence of parental immunity. India has not witnessed any such case till now although it has recognised the legality of the foetus.
The law of prenatal injuries has undergone drastic change during the last century. Nevertheless, a majority of jurisdictions now permit children to recover for injuries suffered while in utero. Furthermore, rapid elimination and abrogation of the parent-child tort immunity doctrine is providing children with an opportunity to take a stand against their parents. To establish a child’s right of recovery for injuries sustained as a result of maternal misconduct, the law must narrowly define the parameters of such action. Courts should dismiss the viability distinction as an important threshold for determining the cases pertaining to prenatal injuries. Notwithstanding elimination of the viability rule, however, the maternal duty of care owed to an unborn child must not be so diverse as to hold the mother liable for remote omissions. Furthermore, courts should impose such a duty on pregnant women only when the women had knowledge or should have had the knowledge about the impending pregnancy. With these limitations instituted, however, there is a strong case to protect the rights of a child who is born alive but defective, as a result of the maternal negligence occurring during the period of foetal development. It is also important to consider that while determining the liability of a mother in prenatal injuries, the courts must not equate the liability of a mother to that of a third party. Therefore, in India, whenever such issues come up, the courts should adopt the approach of finding the fine balance between the extent of maternal duties and need for protecting the rights of the unborn child.
In the civil context, where maternal liability would serve to alleviate the suffering of the injured child through monetary compensation, it is suggested that a reasonable pregnant woman standard will properly balance these competing interests.
- Congenital Disabilities (Civil Liability) Act 1976 (UK).
- Motor Vehicles Act, 1988 (India).
- RATANLAL AND DHIRAJLAL, LAW OF TORTS (26th ed 2013)
- Deborah M. Santello, Maternal Tort Liability for Prenatal Injuries, 22 Suffolk U. L. Rev. 747, 749- 777 (1988)
- Douglas E. Carroll, Parental Liability for Prenatal Liability for Preconception Negligence: Do Parents Owe a Legal Duty to Their Potential Children?, 22 California Western Law Review 289, 290-313 (1986).
- Frank Gulino, Legal Duty to the Unborn Plaintiff: Is There a Limit, 6 Fordham Urb. L.J. 217, 220-247 (1978).
- Gerard M. Bambrick, Developing Maternal Liability Standards for Prenatal Injury, 61 Stjohns Law Rev. 592, 593-611 (1987).
- Kate Wellington, Maternal Liability for Prenatal Injury: The Preferable Approach for Australian Law?, 18 Tort L Rev. 89, 91-98 (2010).
- KR Smolensky, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic Interventions, 60 Hastings LR 299, 300-305 (2008)
- Mary K. Kennedy, Maternal Liability for Prenatal Injury Arising from Substance Abuse during Pregnancy: The Possibility of a Cause of Action in Pennsylvania, 29 Duq. L. Rev. 553, 554-577 (1991)
- P. J. Pace, Civil Liability for Pre-Natal Injuries, 40 Modern Law Rev. 141, 142-154 (1977).
- Ron Beal, Can I Sue Mommy – An Analysis of a Woman’s Tort Liability for Prenatal Injuries to Her Child Born Alive, 21 San Diego L. Rev. 325, 326- 372 (1984).
- The Harvard Law Review Association, Tort Law. Prenatal Injuries. Supreme Court of Illinois Refuses to Recognize Cause of Action Brought by Fetus against Its Mother for Unintentional Infliction of Prenatal Injuries. Stallman v. Youngquist, 125 Ill. 2d 267, 531 N. E.2d 355 (1988), 103 Harvard Law Rev. 823, 834-826 (1990)
- William T. Muse & Nicholas A. Spinella, Right of Infant to Recover for Prenatal Injury, 36 Virginia Law Rev. 612. 613-622 (1950).
- JOHN KELLS, A GENERAL INDEX TO THE MODERN REPORTERS, RELATIVE TO THE LAW OCCURRING AT TRIALS BY NISI PRIUS: FROM THE PERIOD OF THE REVOLUTION TO THE PRESENT TIMES 219 (George Grierson 1797).
- Shri Vidhya Jayakumar, Liability of a Mother for Prenatal Negligence to her Child: A Case for Equal Parenthood, VPMTHANE.NET (January 9, 2009, 10:41 AM). https://www.vpmthane.net/law1/PrincArticles/Liability_of_a_mother_for_prenatal.pdfhtml.
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