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D. Human reproduction

The recent expansion of the tort of negligence into the field of human reproduction was heralded by the case of Duval v. Seguin. [Note 28: [1972] 2 O.R. 686 (H.C.J.), aff'd (1973), 1 O.R. (2d) 482 (C.A.) [Duval].] The plaintiff in that case sued in respect of prenatal injuries suffered when her mother was involved in a car accident caused by the negligence of the defendant. The Court held that the defendant owed a duty of care to the fetus which was actionable by the child as soon as she was born alive. The attention that this case brought to the issue of liability to the unborn, the expansionary trends of negligence law, and the lack of any intra-family immunity from tort liability have sparked both interest and litigation on a variety of issues relating to human reproduction. Some of the issues present profound policy dilemmas and have tested the limits of negligence liability. Four kinds of cases are canvassed below: cases involving prenatal injuries, wrongful birth cases, wrongful life cases, and wrongful pregnancy cases.

1) Prenatal Injuries

A child who is born alive may sue in respect of prenatal injuries caused by the defendant's negligence. This is the cause of action that was recognized in Duval. [Note 29: It is also confirmed by legislation in Ontario. See Ontario Family Law Act, R.S.O. 1990, c. F.3, s. 66: "No person is disentitled from recovering damages in respect of injuries for the reason only that the injuries were incurred before his or her birth."] No tort is committed while the child is a fetus. In Canadian law a fetus is not a human person and, therefore, has no legal rights. Consequently, if a child is stillborn because of the defendant's negligence, the mother may sue for her losses, but there is no right of action in the fetus that might survive to the benefit of his estate. Once the child is born alive, however, he is a human person and may sue in respect of physical or mental disabilities that were caused by the defendant's prenatal negligence. Liability may be imposed, for example, on the manufacturers of drugs who fail to do sufficient testing of new products in respect of dangers to the fetus or fail to warn doctors that a medication should not be prescribed for pregnant women. A physician may also damage the fetus by prescribing medications that are not recommended for pregnant women, by injuring the fetus in the course of an unsuccessful abortion, [Note 30: Cherry (Guardian ad litem of) v. Borsman (1992), 94 D.L.R. (4th) 487 (B.C.C.A.).] or by failing to take appropriate care in the course of a Caesarean section or a difficult labour.

A duty of care is not, however, owed by a mother to her unborn child. The issue arose in Dobson (Litigation Guardian of) v. Dobson. [Note 31: [1999] 2 S.C.R. 753 [Dobson].] The plaintiff child sued his mother for prenatal injuries caused allegedly by her negligent driving. A majority of the Supreme Court held that she owed no duty of care either to her fetus or to her subsequently born child. This maternal immunity in respect of prenatal injuries was justified on policy grounds. The recognition of a duty of care in Dobson could not, in the majority's view, be constrained or tailored to the operation of motor vehicles. It would, therefore, lead to the judicial scrutiny and assessment of all maternal conduct that carried a risk of injury to the unborn child including the mother's lifestyle choices such as her use of alcohol, tobacco, drugs and solvents, her recreational activities, her sexual practices, and her dietary regime. This in turn could lead to unacceptable restrictions on the bodily integrity, liberty, privacy, and autonomy of pregnant women. Moreover, the articulation and application of an appropriate standard of care in these circumstances is fraught with difficulty. The minority favoured the recognition of a duty of care in cases like Dobson where the duty at issue (to drive safely) is owned not only to the unborn child but also to third parties. In those circumstances the recognition of a duty of care to the unborn child does not interfere with the mother's freedom of action.

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