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

AuthorAlana Cattapan, Roxanne Mykitiuk & Mark Pioro
PositionBSocSc, MA, PhD Candidate/Associate Professor of Law, Osgoode Hall Law School/BA, MA, JD
(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
 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.
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.
(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

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