The expansion of the tort of negligence into the field of human reproduction was heralded by the case of Duval v. Seguin.35The plaintiff in that case sued in respect of prenatal injuries suffered when her mother was involved in a car accident caused by the negligence of the defendant. The Court held that the defendant owed a duty of care to the fetus which was actionable by the child as soon as she was born alive. The attention that this case brought to the issue of liability to the unborn, the expansionary trends of negligence law, and the lack of any intra-family immunity from tort liability have sparked both interest and litigation on a variety of issues relating to human reproduction. Some of the issues present profound policy dilemmas and have tested the limits of negligence liability. Four kinds of cases are canvassed below: cases involving prenatal injuries, wrongful birth cases, wrongful life cases, and wrongful pregnancy cases.
A child who is born alive may sue in respect of prenatal injuries caused by the defendant’s negligence. This is the cause of action that was recognized in Duval.36No tort is committed while the child is a fetus. In Canadian law a fetus is not a human person and, therefore, has no legal rights. Consequently, if a child is stillborn because of the defendant’s negligence, the mother may sue for her personal losses, but there is no right of action in the fetus that might survive to the benefit of his estate and no right of action is available to family members under fatal accidents legislation.37Once the child is born alive, however, he is a human
person and may sue in respect of physical or mental disabilities that were caused by the defendant’s prenatal negligence. Liability may be imposed, for example, on the manufacturers of drugs who fail to do sufficient testing of new products in respect of dangers to the fetus or fail to warn doctors that a medication should not be prescribed for pregnant women. A physician may also damage the fetus by prescribing medications that are not recommended for pregnant women, by injuring the fetus in the course of an unsuccessful abortion,38or by failing to take appropriate care in the course of a Caesarean section or a difficult labour. Physicians do not, however, owe a duty of care to future children not as yet conceived when treating women of child-bearing age. The issue arose in Paxton v. Ramji.39The alleged negligence was the failure of the defendant physician to follow stringent advisory protocols emphasizing the importance of the patient not getting pregnant while on the drug Accutane because of the risk of fetal harm. The woman became pregnant while on the drug and her child suffered serious disabilities. The Ontario Court of Appeal concluded that a duty of care to the child should not be recognized on public policy grounds including the potential for a conflict between the duty to the mother and future children.40A duty of care is not, however, owed by a mother to her unborn child. The issue arose in Dobson (Litigation guardian of) v. Dobson.41The plaintiff child sued his mother for prenatal injuries caused allegedly by her negligent driving. A majority of the Supreme Court held that she owed no duty of care either to her fetus or to her subsequently born child. This maternal immunity in respect of prenatal injuries was justified on policy grounds. The recognition of a duty of care in Dobson could not, in the majority’s view, be constrained or tailored to the operation of motor vehicles. It would, therefore, lead to the judicial scrutiny and assessment of all maternal conduct that carried a risk of injury to the unborn child including the mother’s lifestyle choices such as her use of alcohol, tobacco, drugs and solvents, her recreational activities, her sexual practices, and her dietary regime. This in turn could lead to
unacceptable restrictions on the bodily integrity, liberty, privacy, and autonomy of pregnant women. Moreover, the articulation and application of an appropriate standard of care in these circumstances is fraught with difficulty. The minority favoured the recognition of a duty of care in cases like Dobson where the duty at issue (to drive safely) is owed not only to the unborn child but also to third parties. In those circumstances the recognition of a duty of care to the unborn child does not place any additional restrictions on the mother’s freedom of action.42
Wrongful birth refers to the claim brought by the parents of a congenitally disabled child against a health-care professional on the ground that her negligent advice or treatment prevented them from avoiding conception...