MGT 3010 – HARM NEGLIGENTLY CAUSED TO A FETUS
A December 3, 2005 article from CBC.CA news discussed a law suit by a child against
her mother for damages caused to the child while she was in the womb. The daughter is
severely brain damaged, blind, and has cerebral palsy and epilepsy. Six years ago, the
Supreme Court of Canada (SCC) held that a child could not sue its mother for damages
caused to it in the womb. One exception permitted by the court was damage caused in
motor vehicle accidents. Alberta is the first, and at present only. province to permit this in
legislation.
The case illustrates a number of issues. The SCC’s ruling banning children from suing
their mothers for damage caused in the womb (except for motor vehicle accidents) is an
example of application of the Anns test. That is “is there a good policy reason for finding
no legal duty of care to a defendant, even though damage caused to him or her was
reasonably foreseeable?” The SCC found “yes, except for car accidents”.
You may wish to consider the arguments for and against allowing or prohibiting such law
suits. Is there likelihood that this “loophole” will open the door for victims of fetal
alcohol syndrome? Should the courts recognize such law suits? If not, should legislators
act? Is there also a chance that such law would eventually allow aborted children to sue
their parents for wrongful death? Or for injuries caused by attempted abortion? Would
this be desirable? What are the values and factors that must be weighed? Should the
“right to life” of s. 7 of the Canadian Charter of Rights and Freedoms require provincial
legislators to protect fetuses from harm negligently, recklessly or intentionally caused in
the womb?
In this case, what actions would the mother have to have taken to avoid a successful law
suit by her child? Put differently, what acts or omissions would justify a decision that she
was negligent? Is it reasonable hat the mother might “benefit” from the damages that may
be paid to the child? Why?