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Friday, July 16, 1999

Claims of the unborn

Andrew Coyne
National Post

There are plenty of good reasons why the Supreme Court should have found against Ryan Dobson, the severely disabled boy who sued his mother for injuries sustained in utero: reasons, alas, other than those the court gave.

Can this really be the sort of case the law of tort had in mind: where plaintiff and complainant collaborate in the joint enterprise of collecting on an insurance policy? The claim, brought by the boy's grandfather with the mother's agreement, accused her of negligence in the collision of the car she was driving with another vehicle. At the time, she was 27 weeks pregnant; Ryan had to be delivered by Caesarean section later that day, with resulting permanent mental and physical damage. The boy's plight is heart-rending, as is the mother's.

But negligence? She was driving through a snowstorm, on a slippery stretch of road. A gust of wind hit the car, causing her to swerve into the path of an oncoming truck. Should she really be held liable for negligence? And if not, why should the insurance company have to pay?

But let's suppose she was negligent. The issue the court was called upon to decide was whether a child may bring suit against his mother for injuries suffered while she was carrying him in her womb. Were he there still, he could not: The law holds that the foetus is not a legal person, and as such has no rights, up to the very moment of birth. Conversely, had he already been born at the time of the accident, it is equally plain that he could: The law allows children to sue their parents. But what of a child, born disabled, where the damage was done before birth?

Again, there are near analogies. Had she caused harm, through her negligence, to someone else's foetus, she could have been held liable, so far as the suffering of the child born later had its origins in the injuries sustained in the womb. Or if another person's negligence were responsible for harm to the child she was carrying, the child, once born, could sue that "third party." The issue here, however, is whether a child can sue his own mother for her pre-natal negligence.

Perhaps predictably, the Supreme Court ruled it could not. "Before birth the mother and child are one," wrote Mr. Justice Peter Cory for the majority. The bond between them is unique: "There is no other relationship in the realm of human existence which can serve as a basis for comparison." Whatever obligations a third party may have to the foetus, they cannot be the same as those of the mother: Since she and the foetus are in effect the same person, for the child to sue her would be like suing itself.

Strange but true: According to the court, the mother has less "duty of care" to her future child than a complete stranger does -- by virtue of the "inseparable unity" of their relationship. Everything an expectant mother does, or fails to do, could conceivably affect the health of her child. "If a mother were to be held liable for pre-natal negligence," wrote the court, "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."

This is the same slippery-slope argument the court cited in refusing, two years ago, to order a Winnipeg woman, a habitual glue-sniffer who had already given birth to two deformed babies, to abstain from her preferred solvents until her third child had been born. But to ask the question -- where do you draw the line? -- is not to answer it. It is not true, as the court complains, that "there is no rational and principled limit to the types of claims which may be brought if such a tortious duty of care were imposed upon pregnant women." The court has simply declined to set one.

To hold a pregnant mother to the same standard of liability as another person with regard to her unborn child, we are told, would in fact impose a far greater obligation upon her -- if it were enforced in every possible instance. Very well. But what if a standard were set that required no greater intrusion on her "bodily integrity, privacy and autonomy" than would be entailed upon a third party? If a pregnant woman may present a danger to her unborn child through all sorts of everyday acts -- taking a drink, running up stairs -- that, in a third party, would be unassailably benign, she may equally act in ways that would be considered negligent no matter who was involved. Driving recklessly, for instance.

The test, as suggested by the court's minority, should be whether her actions are of the sort that would imperil not only the child she is carrying, but any other person, not so intimately connected. If a third party may be held liable for negligence toward the foetus, then surely a pregnant mother should be liable for actions that would constitute negligence, if directed at anyone else.

This need not, then, pit the rights of the foetus against the rights of the mother. Maybe her unborn child should have no greater claim upon her than anyone else. But surely it is entitled to no less.

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