Notions of Reproductive Harm in Canadian Law: Addressing Exposures to Household Chemicals as Reproductive Torts

• Author: Alana Cattapan, Roxanne Mykitiuk & Mark Pioro
• Position: BSocSc, MA, PhD Candidate/Associate Professor of Law, Osgoode Hall Law School/BA, MA, JD
• Pages: 79-136

79

(2015) 1 CJCCL

Notions of Reproductive Harm

in Canadian Law: Addressing

Exposures to Household Chemicals

as Reproductive Torts

Alana Cattapan*, Roxanne Mykitiuk** &

Mark Pioro***

Mounting scienti c evidence is suggesting that various synthetic chemicals are ubiquitous

in the household and natural environment, and are a ecting reproductive health in

humans. Yet litigation in response to exposure to harmful chemicals has had limited

success.  is is in large par t because causation is often di cult to prove, as exposure

often occurs over long periods of time, and the sources of suspected chemical agents are

ubiquitous and/or di use. In light of these challenges, there is a need to consider new

legal strategies to confront these harms.

 is article examines the potential for prenatal exposure to harmful chemicals to

be approached as reproductive torts as opposed to toxic torts. Focusing on two groups

of household chemicals – brominated  ame retardants and phthalate s – this article

identi es the ways in which prenatal injury claims and birth torts (i.e. wrongful

pregnancy, wrongful birth, and wrongful life cases) can inform future litigation

regarding prenatal exposures to risky household chemicals. In particular, reproductive

tort jurisprudence o ers a variety of ways of conceptualizing causation, injury and fault

in cases where individuals are exposed to synthetic household chemicals before birth.

* BSocSc, MA, PhD candidate at York University.

 BA, LLB, LLM, JSD, Associate Professor of Law at Osgoode Hall Law

School.

 BA, MA, JD (of the Ontario Bar), was a Research Associate at Osgoode

Hall Law School while employed on this project.  e authors made equal

contributions to this article and appear in alphabetical order.

80

Cattapan, Mykitiuk & Pioro, Notions of Reproductive Harm

I. I

II. C E  T T

III. R T

A. Prenatal Injury Claims

B. Prenatal Injury Claims Against Pregnant Women

C.  e Birth of a Child as a Legal Harm (“Birth Torts”)

D. Pre-Conception Torts

IV. R  C  “R T”

V. C

I. Introduction1

The human health e ects of exposure to synthetic chemicals,

ubiquitous in present-day society, call attention to the vulnerability

of reproductive and developmental processes that may be in uenced by

these substances. Biological systems developing in utero and throughout

childhood are particularly susceptible to environmental in uence s,2

and exposures may result in negative health e ects, including harms to

the reproductive system.3 Cases of exposure to diethylstilbestrol (DES)

o er a historically signi cant example in which exposure to synthetic

1. Supported by grant RHF100625 and grant RHF-100626 from the

Institute for Human Development, Child and Youth Health (IHDCYH),

Canadian Institutes of Health Research (CIHR).

2. American College of Obstetricians and Gynecologists Committee

on Health Care for Underserved Women & American Society for

Reproductive Medicine Practice Committee, “Committee Opinion

No 575: Exposure to Toxic Environmental Agents” (2013) 122:4

Obstetrics & Gynecology 931 at 931; Philippe Grandjean et al, “ e

Faroes Statement: Human Health E ects of Developmental Exposure

to Chemicals in Our Environment” (2008) 102:2 Basic & Clinical

Pharmacology & Toxicology 73.

3. For example, a number of human studies have shown that exposures to

common household plasticizers (phthatlates) “are associated with a direct

adverse e ect on androgen function in men,” and linked to shortened

anogenital distance. See Richard Grady & Sheela Sathyanarayana,

“An Update on Phthalates and Male Reproductive Development and

Function” (2012) 13:4 Current Urology Reports 307 at 309.

81

(2015) 1 CJCCL

chemicals had substantive e ects for those exposed in utero and for the

children of those exposed in utero.4 In addition, fetuses and children

face higher exposure rates to chemicals due to their smaller size, and, for

children, the accumulation of toxic substances in breast milk and their

close physical contact with household objects.5

Currently, a number of household chemicals are under scrutiny

due to their ubiquity and the identi cation of potential harms to the

reproductive health of those exposed in utero, particularly harms to

male reproductive health. For example, brominated  ame retardants

(BFRs), found in furniture, carpeting, electronics, children’s pyjamas,

and a number of other consumer products,6 are found in the blood of

most of the general population and have been linked to altered testicular

cells in male rats exposed in uter o.7 Epidemiological studies have also

suggested the existence of correlative relationships between exposures

to BFRs and reduced testis size, sperm concentratio n,8 altered hormone

4. See Richard Goldberg, “Causation and Drugs:  e Legacy of

Diethylstilbestrol” (1996) 25 Anglo-Am L Rev 286; W Lenz, “A Short

History of  alidomide Embryopathy” (1988) 38:3 Teratology 203.

5. See for example Joseph L Jacobson, Sandra W Jacobson & Harold EB

Humphrey, “E ects of Exposure to PCBs and Related Compounds

on Growth and Activity in Children” (1990) 12:4 Neurotoxicology

and Teratology 319 at 319 (on the breastmilk point);  eo Colborn,

Frederick S vom Saal & Ana M Soto, “Developmental E ects of

Endocrine-Disrupting Chemicals in Wildlife and Humans” (1993)

101:5 Environmental Health Perspectives 378 (on the vulnerability

and permanent nature of exposure during development); Vincent F

Garry, “Pesticides and Children” (2004) 198:2 Toxicology and Applied

Pharmacology 152; Philippe Grandjean et al, “ e Faroes Statement:

Human Health E ects of Developmental Exposure to Chemicals in

Our Environment” (2008) 102:2 Basic & Clinical Pharmacology &

Toxicology 73 (on sensitivity of fetal and neonatal development).

6. Sheila R Ernest et al, “E ects of Chronic Exposure to an Environmentally

Relevant Mixture of Brominated Flame Retardants on the Reproductive

and  yroid System in Adult Male Rats” (2012) 127:2 Toxicological

Sciences 496.

7. Yi-Qian Ma, Understanding the E ects of Exposure to an Environmentally

Relevant Mixture of Brominated Flame Retardant Congeners on the Function

and Development of the Male Gonad (M Sc  esis, McGill University

Faculty of Medicine, 2013) [unpublished] at 61.

8. K Akutsu et al, “Polybrominated Diphenyl Ethers in Human Serum and

Sperm Quality” (2008) 80:4 Bulletin of Environmental Contamination