Toronto Star

Saturday, July 10, 1999

Boy denied right to sue his mother

Supreme Court rules on liability for fetal injury

By Valerie Lawton
Toronto Star Ottawa Bureau

OTTAWA - Children have no right to sue their mothers for injuries suffered while they are still in the womb, says the Supreme Court of Canada.

The ruling yesterday was a letdown for the family of 6-year-old Ryan Dobson, who cannot speak and has trouble walking after his mother was in a car accident before he was born.

``We're disappointed for Ryan's sake,'' said his grandmother, Bev Price. ``The money that would have been there won't be there for Ryan in later years.''

The little boy, who lives in Moncton, was born 13 weeks premature after his mother Cynthia lost control of her car during a snowstorm and slid into an oncoming pickup truck.

Ryan, who suffers from cerebral palsy, was delivered by Caesarean section a few hours later.

Ryan's grandfather filed a lawsuit accusing Cynthia Dobson of negligence in order to get money from her insurance company for his care.

The case was closely followed by both sides in the abortion debate. The court's 7-2 ruling was applauded by women's groups, but condemned by anti-abortion activists yesterday.

The high court judges expressed concern for a woman's rights in deciding that children cannot sue their mothers for prenatal injuries, despite the fact they can sue anybody else for such injuries.

Ryan is also suing the driver of the pickup truck involved in the accident.

But the relationship between a mother and fetus is ``unique and special,'' Mr. Justice Peter Cory, now retired, wrote for the majority.

``In contrast to the third-party defendant, a pregnant woman's every waking and sleeping moment, in essence, her entire existence, is connected to the fetus she may potentially harm,'' Cory said.

``If a mother were to be held liable for prenatal negligence, 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.''

Extending the right to sue could make a woman liable if she failed to eat properly during pregnancy, or over-excerised, or didn't take enough care to avoid falling, the judge said.

``It should not be forgotten that the pregnant woman - in addition to being the carrier of the fetus within her - is also an individual whose bodily integrity, privacy and autonomy rights must be protected.''

Ryan's lawyers had argued that the court could limit the right to sue in cases involving motor vehicle accidents. In the United Kingdom, for example, children can't sue their mother for prenatal injuries unless they're caused by negligent driving.

But the high court judges said it was up to the legislature, not the courts, to decide if there should be some kind of liability, and only after careful study and debate.

The Supreme Court made a related ruling in 1997, deciding that a woman addicted to glue-sniffing couldn't be detained in order to protect her unborn child from health problems.

Yesterday's decision strikes down two rulings in Ryan's favour made by New Brunswick courts.

Cynthia Dobson's insurance company has already given Ryan an undisclosed cash settlement, but his family says it's not enough to offer the life they'd like for him. He would have received more money if the Supreme Court had allowed the suit to proceed.

Anti-abortion groups had hoped Ryan's case might open the door to recognizing fetal rights under Canadian law.

They say the legal fight is not over.

``I don't think that's an issue that's going to go away,'' said lawyer Bill Sammon, who represented the Catholic Group for Health, Justice and Life.

Women's rights advocates had worried that a decision allowing children to sue mothers would put women at risk of a lawsuit for taking part in everday activities, and create an adversarial relationship between a special-needs child and its mother.

Marilyn Wilson, executive director of the Canadian Abortion Rights Action League, which intervened in the case, said a better answer is for the government to offer adequate assistance for disabled children.

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