Does a Mother owe a Duty of Care to her unborn child?

October 7, 2017 Medical

ASSIGNMENT 1: Subject2


Traditionally, legal protection was seldom granted to unborn kid and in the event they were granted such protection, it was purely dependent on their unrecorded birth. [ 1 ] Since so, the jurisprudence regulating a mother’s liability for antenatal hurt has evolved and varies drastically across many legal powers. For illustration, in Canada, the tribunals by and large take into account several policy factors to allow them unsusceptibility from liability.

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It is to be expected that a big bulk of society would accept the proposition that a female parent is required to care for and protect her kid for many grounds such as emotional and moral grounds. However, it is ill-defined whether such a per centum would hold with the fact that a female parent would be apt for doing antenatal hurts to her unborn kid. Possibly the most of import issue of allowing female parents full unsusceptibility is that the kid would non be compensated for their antenatal hurts from their female parent and besides from 3rd parties like insurance companies.

This article will analyze the current jurisprudence across assorted legal powers like Canada and the United Kingdom ( peculiarly the assorted policy considerations adopted ) in order to determine the most suited attack to be implemented in Australia, since the inquiry whether a female parent owes a responsibility of attention towards her unborn kid is still unsettled in this legal power. This article will besides see statements for and against enforcing a responsibility of attention. Last, it concludes with a suggestion that a female parent should non be apt for doing antenatal hurt to her unborn kid other than in motor vehicle accidents [ 2 ] and why this will be the most appropriate attack.

  1. Introduction

Basically, a responsibility of attention is ‘an duty imposed on a individual to take sensible attention to guarantee that they do non do another individual to endure harm’ . [ 3 ] The relationship between a parent and a kid is one such circumstance that draws such a responsibility of attention to be imposed in some legal powers. It has been accepted by many that the responsibility of attention outlined supra will merely accrue when a kid is born and possesses legal rights. [ 4 ] Having said that, some observers are of the position that since a foetus is wholly dependent upon his female parent for nutriment and life, a pregnant adult female should owe a similar responsibility of attention to her unborn kid. [ 5 ] It is without a uncertainty that the right of an unborn kid to action its female parent will convey approximately several ethical and moral issues that will set a strain on household ties.

In Australia, when a kid is born it is automatically entitled to action for breach of rights. [ 6 ] The tribunals have extended this position to include state of affairss where the unborn kid sustains hurts prior to being born. [ 7 ] It is good established that the tribunals have held 3rd parties like negligent route users [ 8 ] and physicians [ 9 ] , apt for hurts inflicted onto an unborn kid. Although the kid possessed no legal rights when the harm was inflicted, it materializes when it is born and therefore, reflects the Torahs of carelessness which states that a cause of action does non accrue until harm or injury is suffered.

Conversely, the tribunals are loath to use such criterions of attention when it concerns antenatal hurts inflicted upon an unborn kid by its female parent ensuing in ‘maternal immunity’ for such hurts. Presently in Australia, a female parent owes no such responsibility of attention towards her kid except in the event of route accidents. [ 10 ] It should be noted at this phase that whilst Australia has non applied such a responsibility of attention in such fortunes, the tribunals have neither rejected it wholly [ 11 ] , unlike the attacks adopted in Canada and United Kingdom.

  1. CURRENT Law
  1. Canada

In Canada, policy factors have to be taken into history before making a determination as to whether a female parent owes a responsibility of attention to her unborn kid. This issue was dealt with in the landmark instances ofWinnipeg Child and Family Services ( Northwest Area ) V G ( DF )[ 1997 ] 3 SCR 925 (Winnipeg Child and Family Servicess) andDobson ( Litigation Guardian of ) v. Dobson[ 1999 ] 2 S.C.R. 753( Dobson ) ,where the Supreme Court of Canada had foremost tackled this issue.

Hellgrammiateinvolved a claim against a pregnant female parent for doing hurts to her unborn kid due to her negligent drive. Her foetus was seemingly damaged in this and had to be delivered prematurely via cesarean subdivision on the twenty-four hours of the accident. As a consequence, the kid was born with intellectual paralysis. A civil wrong claim was brought by the maternal gramps on behalf of the kid in order to claim from his father’s insurance policy so as to cover the amendss caused by negligent drive. The bulk in this instance found that a pregnant adult female should non be held apt in the state of affairs as a claim for negligent drive should be treated no otherwise to any other negligent Acts of the Apostless of the female parent. [ 12 ] McLachlin JJ goes on to add that enforcing such a liability would curtail a woman’s rights. Specifically ‘they would lose their autonomy and non be treated every bit with other adult females in society’ [ 13 ] . The bulk so went on to mention the trial laid out inKamloops[ 14 ].FollowingKamloops, the Court said a responsibility of attention is recognized if the involved parties are closely related and if the issue raises inquiries about public policy. One might reason that although a foetus and its female parents are normally seen as one individual, the Court in this instance addressed the issue as if they were two separate people. It is besides critical to observe that the ‘reasonable pregnant woman’ criterion of attention is an nonsubjective trial. The bulk in this instance deemed it to take into history in this instance [ 15 ] as it will raise many issues sing a pregnant woman’s personal life style picks which will hold a negative impact on her privateness and manner of life.

Finally, the bulk came to a decision that public policy factors associated with enforcing a responsibility of attention on female parents towards their unborn kid ‘are of such a nature and magnitude that they clearly indicate that a legal responsibility of attention can non and should non be imposed by Courts’ . [ 16 ]

Hence, the Court held that the public policy considerations were paramount and outweighed any sufficiently close relationship between the parties that gave rise to the responsibility of attention and that the female parent did non owe a responsibility of attention her unborn kid even in fortunes where it involved motor vehicle accidents. It should be noted that Australian tribunals reach a different determinations as times due to the fact that accent is non placed on using the populace policy considerations in such instances. Besides, when it concerns motor vehicle accidents in Australia, the female parent is held apt for antenatal hurts caused to her unborn kid if she was negligent without weighing the public policy considerations.

InWinnipeg, the Supreme Court of Canada held that a pregnant adult female who was addicted to paste whiffing could non be taken off against her will in seeking to protect the involvement of her unborn kid. The Court concluded that they had no legal power to interfere in such affairs and that it was beyond the range of the Court’s power to confine a pregnant adult female against her will. As such, the Court stated that, ‘To extend the jurisprudence of civil wrong to allow an order for the detainment and intervention of a pregnant adult female for the intent of forestalling injury to the unborn kid would necessitate major alterations to the bing jurisprudence … these are the kind of alterations which should be left to the legislature’ . [ 17 ]


The current jurisprudence in the United Kingdom environing this issue is really similar to that adopted in Australia. [ 18 ] TheCongenital Disabilities ( Civil Liability ) Act 1976( UK ) grants female parents a legal unsusceptibility from liability for doing antenatal hurts to her unborn kid. However, the tribunal cited that a legal responsibility should be imposed where it is the consequence of a motor vehicle accident. [ 19 ]

Section 2 of theCongenital Disabilities Actprovinces:

A adult female driving a motor vehicle when she knows ( or ought moderately to cognize ) herself to be pregnant is to be regarded as being under the same responsibility to take attention for the safety of her unborn kid as the jurisprudence imposes on her with regard to the safety of other people ; and if in effect of her breach of that responsibility her kid is born with disablements which would non otherwise have been present, those disablements are to be regarded as harm ensuing from her unlawful act and actionable consequently at the suit of the kid.

In ordaining this statute law, the United Kingdom Law Commission besides took into consideration public policy factors that was applied in other legal powers. [ 20 ]

  1. Australia

As discussed above, merely a 3rd party, who is non the female parent of the unborn kid, can be found to hold owed a responsibility of attention to the kid. [ 21 ] InLynch v Lynch ( by her coach Lynch )( 1991 ) 25 NSWLR 411 (Lynch v Lynch) , a female parent was found guilty of negligent drive, doing an accident which resulted in intellectual paralysis in her unborn kid. Public policy factors were non applied in this instance as Clarke JA held that the inquiry before the tribunal was ‘very narrow and related specifically to route accidents.’ [ 22 ] The tribunal besides took into history whether there was a presence of a mandatory motor vehicle insurance in reasoning whether the female parent owed a responsibility of attention to her unborn kid. [ 23 ]

The bulk determination inLynch v Lynchwas affirmed and cited inBowditch V McEwan[ 2002 ] QCA 172 (Bowditch V McEwan) . It has been long established that a responsibility of attention is owed to walkers and other route users. [ 24 ] However,Watt V Ramaextended this responsibility of attention to integrate foetuss injured in route accidents. In this instance, a female parent who was pregnant caused hurts to her unborn kid as a consequence of her negligent drive. The kid later suffered from epilepsy and encephalon harm. The female parent denied that she owed her unborn child a responsibility of attention whilst it was still in her uterus. However, the Victorian Supreme tribunal held that since the kid was born handicapped as a consequence of the hurts sustained while it was still in its mother’s uterus, attracts a responsibility of attention. As a consequence, it was immaterial whether the kid was born or non when the hurt was sustained, so every bit long as the victim fell into a class of people that would be affected by a negligent act caused by person else.

Although the Australian tribunals are required to specifically use public policy considerations in determining whether a responsibility of attention exists, it is non as stiff and expressed as the attack adopted in Canadian tribunals.


There are many factors that needs consideration when a legal power imposes a responsibility of attention that will pull an ethical and legal troubles. The polar statement put away in instances in enforcing a responsibility of attention is that a foetus is entirely dependent upon its female parent for nutrition in order for it to develop healthily. [ 25 ] Hence, it is sensible foreseeable that any negligent Acts of the Apostless would hold a unwanted impact on the unborn kid. Unquestionably, the propinquity trial would fulfill the vicinity rule established inDonoghue V Stevenson. [ 26 ]

In add-on, by enforcing a responsibility of attention, a female parent will most likely act in the best involvements of her unborn kid. For illustration, a pregnant adult female might decline to go to medical medical examinations or follow medical advice that would profit the unborn kid. Besides, she might forbear from harmful activities like smoke and imbibing that will negatively impact upon an unborn kid.


Some factors would forestall such a responsibility from being imposed due to the reverberations it might hold on the society every bit good as in their personal lives. This mainly revolves around continuing the liberty and privateness of a pregnant adult female. [ 27 ] As discussed in this article, Cory J inDobson V Dobson,made it clear that a pregnant woman’s rights must be upheld as first and foremost, she is a human being and should be afforded the same rights as others.

The tribunals are besides loath on enforcing a general responsibility of attention as this would promote kids to action their parents in carelessness. If this tendency continues, it could hold inauspicious effects on the relationship between the female parent and the kid every bit good as the remainder of its household. [ 28 ]

However, this ground on its ain is non sufficient to finish eliminate the responsibility of attention owed to an unborn kid.


On one manus, it is really of import for a female parent to see how her actions might hold an impact on her unborn kid, nevertheless, it is non in the custodies of the bench to order how she should populate her personal life as that would interfere with her right to privateness. While Australian tribunals have non imposed a general responsibility of attention in such instances, it has non been rejected as good.



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