Contents

Introduction................................................................................................................................1
Street On Torts...........................................................................................................................2
When can Child Sue...................................................................................................................4
Development of the Law...............................................................................................4
Duties of Parents........................................................................................................................5
Indian Cases...............................................................................................................................5
Notes..........................................................................................................................................5
More Cases.................................................................................................................................6

Introduction

Rights of Unborn in other laws is fairly uncontested because other laws in this matter are
fairly straightforward:

- Rights provided under Transfer of Property Act to an unborn child: Section 30 of the
Transfer of Property Act allows a person to transfer his/her property to the one who is
in the mother’s womb. Even though this section does not consider a fetus as a living
person, it permits the transfer of property to the same.
- Rights provided under Code of Criminal Procedure to an unborn child: Section 416 of
CrPC states that when a woman is given a death sentence, proven as pregnant, then
the implementation of the death sentence is either postponed or converted into life
imprisonment depending on the case. It reflects that the life of the fetus is taken into
consideration
- Rights provided under Hindu Succession Act to an unborn child: Section 20 of the
Hindu Succession Act governs the rights of the fetus. It gives the born child and the
baby in the mother’s womb equal status and they both have the same right on the
inherent property of the deceased.
- Rights provided under the Indian Penal Code to an unborn child : Section 312[6] to
316[7] of the Indian Penal Code given extreme priority to the unborn child. Under
these sections, any individual who prevents a child from being born alive or cause the
death of a fetus will be liable based on the kind of case.
- Rights provided under Limitation Act to an unborn child: In Section 6 of the
limitation act[8], the term “minor” includes an unborn baby (fetus).
Complications when you speak in terms of tort law:

- When you start with the question of unborn rights there two things to be asked –
rights of who and rights against whom?
o Who? – Is an unborn child a legal person. Question of who also becomes
relevant when thinking of certainty.
o Against whom – In 3rd party situations is easy. Suppose a mother is pregnant
and she smokes. Would you say that this child can claim against the mother.
o Even if you are just speaking about medical negligence cases: causation. If
science cannot trace the deformity in the born child to the injury to the mother
before its birth, it is idle for the law to speculate. This difficulty does not arise
where there is negligent injury by direct application of force to the child's
body before birth.

Street On Torts

UK Perspective: Until 1992 it was unresolved.

- The Congenital Disabilities (Civil Liability) Act 1976: Section 1(1): That a child who
is born alive but disabled as a result of an occurrence before its birth may in certain
circumstances have a cause of action against the person responsible for that
occurrence.
- Section 4(5) provides that the 1976 Act supersedes the common law in respect of
births occurring after its passing. Thus the common-law rule in Burton, in so far as it
is superseded by the 1976 Act, applies only in relation to children born before 1976.
- Act only covers disability. predisposition (whether or not susceptible of immediate
prognosis) to physical or mental defect in the future.
- Act is derivative: The duty imposed under the Act relates to any occurrence, whether
it is one affecting the reproductive capacity of either parent before conception, or one
affecting the mother during pregnancy. The relevant occurrence must have been
capable of giving rise to liability in tort to the affected parent.
- Burton v Islington Health 1992: held that a duty is owed to the unborn child, but that
the duty does not crystallise until the live birth of the child.
- McKay v Essex Area Health Authority: [Before 1976] The Court of Appeal held that it
was impossible to measure the harm resulting from entry into a life afflicted by
 disability where the only alternative was no life at all. They were therefore unprepared
to impose on doctors a duty of care that was in essence a duty to abort
- that the Act gave a cause of action only in respect of occurrences causing disabilities
which would otherwise not have afflicted the child. It did not afford a remedy to a
child whose birth was caused by the defendant’s alleged negligence (even though the
child born was afflicted by a disability). His Lordship also emphasised the fact that
the Act was equally unsupportive of a claim for ‘wrongful life’

US Perspective:
[Initial Cases on Prenatal injuries] Dietrich v. Inhabitants of Northampton - However, with
this case arose a discrepancy in the law as on one hand, the law allowed an unborn child to
enforce its rights pertaining to property, on the other hand, the law did not provide any
remedy to the child for suffering pre-natal injuries while in its mother’s womb. In this case, a
four to five months pregnant woman fell and got injured while walking on a defective
highway under the management of the defendant. As a result of the fall, she suffered a
miscarriage and the premature child could only survive for ten to fifteen minutes.
Subsequently, an action for wrongful death was contended on behalf of the deceased child.
Justice Holmes, in this case, argued that an unborn child does not have locus standi in the
court and is a part of the mother at the time of infliction of injury which resulted in its death.
The case was dismissed on the ground that no civil duty could be owed to an individual not
yet in being. This decision remained uncontested in the American Jurisdiction for the
following several years.

 Montreal tramways v. Leville: It was held in this case that a child having no right of action
for pre-natal injuries amounts to an injury without a remedy. It also pointed out that even
though the father is permitted to seek compensation for the loss he has sustained and the
mother for what she has put up with, the child is prohibited from seeking compensation for
the wrong against itself. Denying the right of action an infant would imply that he would be
suffering for the wrongs committed by some other person.

Unborn Victims of Violence Act: In utero as a legal victim, if they are injured or killed
during the commission of any of over 60 listed federal crimes of violence. The law defines
"child in utero" as "a member of the species Homo sapiens, at any stage of development, who
is carried in the womb."
Criticism: The Unborn Victims of Violence Act was strongly opposed by most abortion-
rights organizations, on grounds that the U.S. Supreme Court's Roe v. Wade decision said that
the human fetus is not a "person" under the Fourteenth Amendment to the U.S. Constitution,
and that if the fetus were a Fourteenth Amendment "person", then they would have a
constitutional right to life.

When can Child Sue

the question is whether the infant is part of the mother or a distinct person; in brief, whether
the mother or the infant should sue. The most original thought on the subject is the dissent of
Justice Boggs in Allaire v. St. Luke's Hospital." His recommendation was that whenever a
child was so far advanced in pre- natal age that, should natural or artificial parturition occur,
the child could live separate from its mother, and is thereafter born and lives, Such a child has
a right of action for any injuries wantonly or negligently inflicted while in its mother's womb.
Before such a time the child is clearly only a part of its mother; but thereafter it is something
more.

Legal rights materialize when the foetus is born: Australia – Watt v. Ramma; Canada -
Dobson v. Dobson; United Kingdom.

Development of the Law

Early Case Law: Most of the early cases rested on the theory that a fetus has no existence
separate from its mother and thus no duty toward such a "nonexistent" being could arise, it
was to be expected that the early decisions should find a duty most clearly in those cases in
which the fetus was viable-that is, where it had reached the stage of development where life
could be maintained outside the mother's womb.

- Dietrich
- Walker P. Great Northern Railway of Ireland : In sustaining a demurrer to a claim
against a common carrier for injury to a child en ventre sa Me're, Chief Justice
O'Brien reasoned that any duty to a child must flow from the contract of carriage, and,
since the existence of a child was not known to the carrier, no duty could exist.
- Allaire

Change:

- Montreal Tramways
 - Bonbrest v. Kotz : been almost unanimous in allowing a cause of action in at least
some circumstances. The case of Bonbrest was one in which injuries to a viable fetus
created a cause of action.

Duties of Parents

Regarding duties of parents: Goller v. White – [Parents can be sued] Wisconsin Supreme
Court for the first time abolished the doctrine of total parental immunity. However, it
maintained immunity in two areas a) where the alleged negligent act involves exercise of
parental authority over the child and b) where the alleged negligent act involves exercise
of parental discretion in providing food, shelter etc.  

Lynch v. Lynch replied that a mother owes a legally enforceable duty to care her unborn
child that will be breached by negligent driving. The Decision of Supreme Court of Canada in
Dobson v. Dobson established that while a fetus has certain rights against the third parties
that materialize upon birth, a child cannot sue its mother for injuries caused prenatally by the
mother’s negligence.

In Stallman v. Youngquist case, the United States position was that a mother was not liable
for injuries caused to her unborn child by her negligent driving in order to preserve the
mothers right to privacy and bodily integrity.

Indian Cases

The Supreme Court in Union Carbide Corporation v. Union of India, referred to the English
Act and held that those who were yet unborn at the time of the Bhopal gas leak disaster and
who are able to show that their congenital defects are traceable to the toxicity from the gas
leak inherited or derived congenitally will be entitled to be compensated. Indeed, father of a
girl child conceived and born after the disaster who died after four months showing
symptoms of gas effect because the mother had inhaled the gas was allowed compensation of
Rs.1.5 lakh by the Supreme Court

Notes

Wrongful Life – When discussing Zepeda:

That case presented the New York Court of Appeals with the same issue but in the different
context. In Williams the defendant was the State of New York whose alleged negligent
supervision of a state mental institution allowed a female patient, the plaintiffs mother, to be
raped by another patient, resulting in the plaintiffs birth to a mentally defective mother. The
New York Court of Appeals, like the Appellate Court of Illinois, held that the common law
did not recognize as actionable the act of causing one to bear the "shame and sorrow" of
illegitimate birth. New York Court of Appeals in Williams v. State replied "Being born under
one set of circumstances rather than another or to one pair of parents rather than another is
not a suable wrong that is cognizable in court

More Cases

In case R.R. v. Poland European Court of Justice replied that “the applicant (mother of the
baby girl effected with the Turner Syndrome – caused by the negligence of medical
professionals) experienced considerable anguish and suffering, having regard to her fears
about the situation of her family and her apprehension as to how she would be able to cope
with the challenge of educating another child who was likely to be affected with a lifelong
medical condition and to ensure its welfare and happiness. Moreover, the applicant had been
humiliated by doctors’ lack of sensibility to her plight”. The Court has found a breach of both
Articles 3 and 8 of the Convention

In Jorgensen v. Meade Johnson Laboratories: Tenth Circuit, applying its interpretation of

Oklahoma law, held that an allegation that birth control pills manufactured by the defendant
caused chromosomal changes in a mother resulting in her giving birth to mongoloid twins
stated a cause of action for the twins for retardation, deformity, and pain and suffering during
their lifetimes.

Renslow v. Mennonite Hospital' that an allegation that the negligent transfusing of a thirteen-
year-old Rh-negative female with Rh-positive blood resulting in permanent disability to a
child born to her nine years later stated a cause of action on behalf of the child.

Bergstreser v. Mitchell, the Eighth Circuit Court of Appeals held that, under Missouri law, a
cause of action was stated on behalf of an infant who suffered harmful hypoxia or anoxia
during an emergency premature Caesarian section caused by the defendant physicians' and
hospital's negligence in performing a prior Caesarian section on the mother