National Post

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Thursday, July 08, 1999

Suit against mom fans the abortion debate
A family's lawsuit could unwittingly become a test case on the thorny issue of foetal rights

Graeme Hamilton
National Post

Diane Doiron, National Post
Ryan Dobson laughs with his mother, Cynthia, yesterday in the kitchen of his grandmother, Bev Price, left. After a 1993 car crash, Ryan was delivered 13 weeks premature.

GALLAGHER RIDGE, N.B. - Ryan Dobson was busy with the work of a six-year-old yesterday -- colouring, stretching Silly Putty, and playing with his cousins. Tomorrow, the seemingly carefree boy will be plunged into the adult world as the Supreme Court of Canada rules on whether he can sue his mother for crashing her car while pregnant and leaving him permanently disabled.

It is a landmark case that has rallied forces on both sides of the abortion debate and led Supreme Court justices to muse over the rights of a foetus. The swirl of rumours around it has caused added pain for a family still struggling to cope with the 1993 head-on collision, which forced doctors to deliver Ryan by emergency caesarean section, 13 weeks premature. The boy was born with cerebral palsy. He is unable to speak, and walks with difficulty. His mother, Cynthia Dobson, was in a coma for 17 days and still suffers some lingering effects.

As they look ahead to the Supreme Court decision, Ryan's family and lawyers prefer not to dwell on the potentially sweeping implications of a ruling in the boy's favour. It is not about staking new legal ground on the divisive issue of foetal rights, they say. It is about looking after Ryan.

"It's being done for Ryan's benefit and Ryan's benefit alone," said Ann MacAulay, half of the wife-and-husband legal team representing the boy. "It's suing the insurance company for Ryan's sake," added Bev Price, Ryan's maternal grandmother. "That's what it has always been."

But in order to get at the insurance company, Ryan -- represented by his maternal grandfather, Gerald Price, as litigation guardian -- had to sue his mother for negligence. It is not unheard of for children to sue parents in Canada, and they have even successfully sued third parties for injuries caused before they were born. But never in this country has a child sued his mother for injuries sustained as a foetus.

That is why, when all nine Supreme Court judges heard the case last December, they also heard from church groups opposed to abortion and from the Canadian Abortion Rights Action League.

Bill Sammon, a lawyer for the Catholic Group for Health, Justice and Life, said a ruling in Ryan's favour would carry with it new protections for the foetus and add legal weight to the argument against abortion.

"If they decided that a born child could sue a mother for pre-natal injuries, we feel that that would be a tacit recognition that you can injure an unborn child, and that an unborn child, because he can be injured, is a human being," he said in an interview. "That would be, we feel, certainly a step in the right direction for protecting the unborn."

The Canadian Abortion Rights Action League argues it would be a step in the direction of shackling pregnant women. Andrea York, a lawyer for the group, said that if a child can sue for injuries sustained before birth in a car crash, there will be nothing to stop lawsuits against pregnant women who cross the road carelessly or fall off bicycles.

"A woman who is pregnant, every action that she takes has some potential ramification on the foetus," she said. "Where do you draw the line?" She agrees with Mr. Sammon that a ruling for Ryan would ascribe new rights to the foetus, taking the law in a direction that could threaten women's access to abortions.

The public spectacle is rooted in a private tragedy that occurred shortly after noon on March 14, 1993, a snowy, slushy day. Cynthia Dobson was driving her Chevrolet Sprint toward Moncton from her home just north of the city, following her husband in a convoy of cars negotiating the windswept highway. Her car hit a slush patch and she veered into the northbound lane, smashing into a pickup truck driven by a Moncton man.

The ensuing six years have been a constant struggle for Ms. Dobson, 33, and her family. She required intensive therapy after the accident, and as time passed it became clear Ryan would need support throughout his life. He has just finished his first year of school, where he communicates by pushing symbols on a voice-simulating computer.

News that Ryan's grandfather was bringing the suit, in the name of Ryan, against his own daughter set tongues wagging in the rural community where they live. But they are only litigants on paper, and remain close physically -- Ms. Dobson lives next door to her parents -- and emotionally.

Ryan's lawyers contend there is no law preventing Ryan from suing his mother. The principle that a child can sue a third party for injuries sustained in the womb has been established in Canada since a 1933 Supreme Court decision. And it is accepted that a child can sue a parent.

"The child whose pre-natal injury was caused by its own mother's negligence should not be singled out as the one class of blameless victims of negligent road accidents to be un-entitled to compensation," his lawyers wrote in their brief to the Supreme Court.

Weighing against Ryan is the position of the court that "a pregnant woman and her unborn child are one," as enunciated in the 1997 Supreme Court ruling that a glue-sniffing woman could not be confined to protect her foetus because the foetus has no distinct rights.

Ryan has already won his case before two lower courts. In January, 1997, Justice Richard Miller of New Brunswick's Court of Queen's Bench ruled that the suit could go ahead, noting that it raised many questions. "Can a child at birth sue the mother because she used narcotics or drank alcoholic beverages?" he asked. "Did the mother over-exercise and cause foetal damage? Did the mother follow an unsafe diet program?"

That ruling was upheld four months later in a unanimous New Brunswick Court of Appeal decision, although the three judges attempted to narrow the issue to motor vehicle accidents. They said the case could proceed because a pregnant woman has a general duty to drive carefully, to her children as well as to the general public.

Robert Barnes, the lawyer who represented Ms. Dobson on behalf of her unnamed insurer, said a mother should enjoy total immunity from lawsuits for foetal injuries. If not, her entire behaviour could come under the scrutiny of the courts.

"Is there a place to draw the line where a mother will be protected in most situations but where certain types of maternal behaviours may still attract liability?" he asked. "There is no obvious bright line that you can draw."

The only lines Ryan was worrying about drawing yesterday were the green-marker scribbles on his doodling paper. The insurance company has paid him an undisclosed sum, for what Mr. Barnes said were compassionate reasons. And the two sides have reached a settlement that would pay the boy a significantly higher amount if the Supreme Court rules in his favour.

Ms. MacAulay said he is going to need the money as he grows older. "Life's not going to be sweet and simple, like it is right now," she said. "He's not always going to be surrounded by people who love him."

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