Globe and Mail

Child harmed in womb can't sue mom, top court rules

WHAT WAS SAID

ERIN ANDERSSEN
The Globe and Mail
Saturday, July 10, 1999

OTTAWA -- Children cannot sue their mothers for injuries suffered in the womb, the Supreme Court of Canada ruled yesterday.

In a majority decision, the court said that making pregnant women liable for fetal harm would violate their rights and potentially limit their ability to work.

If there are exceptions to be made -- as in the case of car accidents -- the court repeatedly emphasized that the decision rests with the country's politicians, not its judges.

In writing the 7-2 decision, Mr. Justice Peter Cory said it would be wrong for the court on its own to make expecting mothers liable in car accidents simply because the cost in those circumstances would fall on insurance companies.

The case of six-year-old Ryan Dobson, who was suing his mother for driving negligently while he was still in the womb, asked an unprecedented legal question: Could a child, once born, take his mother to court for behaviour that harmed him when he was a fetus?

The Supreme Court had already said in 1933 that children like Ryan could sue third parties for prenatal damages. But by asking the court to extend that liability to mothers, the Dobson case stepped into a contentious debate over the freedoms of pregnant women and the rights of their unborn children.

The court ruled, however, that holding expectant mothers liable could affect everything they do during their pregnancy -- what they eat or drink, how they exercise or how carefully they cross the street.

In its decision, the court repeated the principles behind a 1997 majority ruling that said a pregnant women addicted to sniffing glue could not be detained to protect her fetus.

"If a mother were to be held liable for prenatal negligence," Judge Cory wrote, "this could render the most mundane decision taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts."

Ryan Dobson's unusual lawsuit dates back to 1993 when his mother smashed her car into a pickup truck on a slick highway near Moncton, N.B. She was 27 weeks pregnant. The accident left her in a coma for 17 days, and within hours of the collision, doctors were forced to remove Ryan by cesarean section. He was born with cerebral palsy; he walks with a limp and cannot speak.

In the hospital, a family friend suggested to Cynthia Dobson's parents that they could get access to insurance money if they sued their daughter, on Ryan's behalf, for his injuries allegedly resulting from the accident -- just as if he had been a passenger in the vehicle.

They filed the lawsuit while their daughter lay in her coma -- before they even knew she would wake up.

In the six years that the case took to get to the Supreme Court, Ms. Dobson's insurance company agreed to a settlement. Ryan will receive a payment despite yesterday's decision; if he had won, the insurance company had agreed to pay much more. Neither sum had been disclosed, but Ryan's lawyers said yesterday that the difference was significant.

"The family is disappointed," said Ann MacAulay, one of the lawyers representing Ryan. "They want Ryan to have a secure future. . . . They feel that Ryan has been forgotten in this decision which is based primarily on public policy and the liberties and rights of women."

The Canadian Abortion Rights Action League, which intervened in the case, is jubilant over the decision. The group had raised the same concerns voiced by the court -- that holding mothers liable, even in car accidents, would put their life choices on trial.

"This was the wrong solution to the problem [of Ryan's care]," said Marilyn Wilson, the organization's executive director. "Women would be walking around feeling shackled with all this excessive burden of care placed on them."

But two religious organizations that intervened in the case argued that allowing the lawsuits would not infringe on a woman's freedom, partly because there was no advantage to suing unless an insurance company exists to cover the costs.

They pointed to a long-standing law in Ontario that allows children to sue their parents for fetal injury. Since the provincial legislature passed the law in 1976, it has never been used.

The court's decision yesterday is "unjust" to children, said Bruce Clemenger, director of national affairs for the Evangelical Fellowship of Canada. "It sets up a situation where someone can engage in extremely harmful behaviour, cause damage to another human being and then be completely immune from responsibility."

That view is backed to some extent in the dissenting opinion written by Mr. Justice John Major. He wrote that expectant mothers should be held liable for "postnatal injuries resulting from prenatal events" only in situations where their actions would cause damage to third parties.

He said mothers would be liable to their children for driving recklessly, but not, for example, for bungee jumping.

It has nothing to do with fetal rights, he wrote -- the mother's legal responsibility would be to her child, once born, not the fetus while she carried it.

When Cynthia Dobson pulled out on that icy highway six years ago, she was already legally obliged to drive carefully. Her liability to Ryan, as a pseudo passenger, is no different from than her responsibility toward the driver of the pickup -- if she caused the accident, Judge Major said.

"The values enshrined in the Canadian Charter of Rights and Freedoms do not grant pregnant women interests of any kind in negligent driving," he wrote.

With the wording of its majority ruling, the court has lobbed this issue at politicians. The court suggested that they could pass legislation similar to that in Britain, allowing children to only sue their mothers to get at insurance money for car accidents that occurred before they were born.

Judge Cory has even offered advice on the narrow nature of that legislation, that it limit damages to the amount of the insurance policy.

Back home in Gallagher Ridge, N.B., Ryan had gone to spend the weekend with his dad, and his mother is home alone. Ms. Dobson says she would suprised if Parliament finds the will to bring in new legislation and she is criticial of the interest groups that "found it necessary to use Ryan's misfortune to further their cause."

The family is already focused on an upcoming trip to Ottawa where Ryan will receive a new treatment to help with his speech. The court decision means he will have less money for his future. That's hard to accept, his mother said, "But we shall go on."

Excerpts from the majority judgment, written by Mr. Justice Peter Cory:

The unique relationship between a pregnant woman and her fetus is so very different from the relationship with third parties. Everything the pregnant woman does or fails to do may have a potentially detrimental impact on her fetus. Everything the pregnant woman eats or drinks, and every physical action she takes, may affect the fetus. Indeed, the fetus is entirely dependent upon its mother-to-be . . .

Whether it be in the household, on the roadways, or in the workplace, the imposition of a duty of care upon a pregnant woman towards her fetus or subsequently born child could render that woman liable in tort, even in situations where her conduct could not possibly affect a third-party . . .

This could include the careless performance of household activities -- such as preparing meals, carrying loads of laundry, or shovelling snow -- while alone in the home . . . A mother who injured her fetus in a careless fall, or who had an unreasonable lapse of attention in the home, at work or on the roadways, could potentially be held liable in tort for the damages suffered by her born-alive child. The imposition of tort liability in those circumstances would significantly undermine the privacy and autonomy rights of women . . .

Any imposition of such tort liability should be undertaken, not by the courts, but by the legislature after careful study and debate. . . .

Such litigation would, in all probability, have detrimental consequences, not only for the relationship between mother and child, but also for the relationship between the child and his or her family. Yet, family harmony will be particularly important for the creation of a caring and nurturing environment for the injured child, who will undoubtedly require much loving attention. It seems clear that the well-being of such a child cannot be readily severed from the interests of his or her family. In short, neither the best interests of the injured child, nor those of the remainder of the family, would be served by the judicial recognition of the suggested cause of action."

An excerpt from the dissenting opinion written by Mr. Justice John Major:

Her freedom of action in respect of her driving was already restricted by her duty of care to users of the highway. Hence, to acknowledge that the suffering of her born-alive child, Ryan Dobson, was within the reasonably foreseeable ambit of the risk created by her negligent driving is hardly a limitation of her freedom of action. The appellant mother would not have had to take any further precautions, additional to those she was already legally obliged to take, in order to avoid liability to her born-alive child.

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