CIVIL LIABILITY FOR PRE‐NATAL INJURIES
| Published date | 01 March 1977 |
| Date | 01 March 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02415.x |
CIVIL LIABILITY
FOR
PRE-NATAL INJURIES
ALTHOUGH Blackstone was able to assert confidently that in criminal
law
“
Life is the immediate gift of God,
a
right inherent by nature
in every individual, and it begins in contemplation
of
the law
as soon as an infant
is
able to stir in the mother’s womb,” sub-
sequent legal development in relation to the unborn child in a civil
context does not wholly endorse this view. The rights of such
a
child
are recognised at law for certain limited purposes only,
e.g.
in connec-
tion with succession to property, the Fatal Accidents Acts and certain
crimes, and there was an apparent hiatus in the law which was high-
lighted by the national tragedy caused by the devastating effects
of
the
drug thalidomide. This apparent gap, which the Law Commission, in
August
1974,
proposed should be filled by the Congenital Disabilities
(Civil Liability) was suggested by the absence of any English
decision on whether a tortious action would subsist at the suit
of
a plaintiff in respect
of
post-natal damage suffered as
a
result of
pre-natal fault.
In
considering whether a right of action is to be granted in
such circumstances, there are at
I
least four possible approaches
which can be, and in other jurisdictions have been, adopted.
The first, a fiction applied in Civil Law jurisdictions and based
upon Roman Law, is that a child
in
utero,
if subsequently born
alive,
is
deemed as already born if that would be to its advantage. The
second involves attributing to the child
in
utero
legal personality
which,
in
the absence of
a
live birth, would have important implica-
tions for both opponents and proponents of abortion law reform. The
third, and biologically unsound, view is that the unborn child is
merely
a
part
of
his mother and, therefore, there can be
no
action
1
Commentaries
(15th ed.),
Vol.
1,
p.
129.
Cf. Roe
V.
Wade,
35
L.
Ed 2d
147,
93
S.
Ct.
(1973),
per
Blackmun
J.
at p. 181: “We need not resolve the difficult
question of when life begins. When those trained in the respective disciplines of
medicine, philosophy and theology are unable to arrive at any consensus the
judiciary, at this point in the development of man’s knowledge, is not in a position
to speculate as
to
the answer.”
2
Law Cam.
No.
60;
Cmnd.
5709:
Report
on
Injuries to Unborn Children.
See
also Working Paper
No.
47:
Injuries to Unborn Children.
The Law Commission’s
recommendations were given effect by the Congenital Disabilities (Civil Liability)
Bill, which was introduced by Mr. Ray Carter M.P. on December
17, 1975,
and
which received its second reading in the
House
of
Commons on February
6,
1976
(see H.C.Deb., February
6,
1976,
Vol.
904,
col. 1589
et
seq.).
The amended Bill
received the Royal Assent on July
22,
1976,
and became the Congenital Dis-
abilities (Civil Liability) Act
1976
(c.
28).
The Scottish Law Commission
No.
30,
Cmnd.
537:
Liability
for
Antenatal Injury,
thought the present law would enable
a child, born alive, to recover for antenatal injuries.
If
legislation was necessary to
avoid doubt
“
it should do
no
more than provide.
.
.
that
if
a person who is born
alive sustains damage as a result of injuries suffered at or before birth, or as a
result of the death before his birth of anyone in respect of whose death he would
ordinarily have a right to sue, he should be entitled to recover reparation as if the
damage had been sustained after his birth.”: para.
29.
3
To
some extent the Act accepts this view, in
so
far as the mother may, by
contract, bar her child’s claim, see
infra.
141
142
THE MODERN LAW REVlEW
[Vol.
40
on his behalf, but only on behalf of his mother if she, while pregnant,
sustained injuries though another’s negligence. The fourth approach
takes the view that, since the tort of negligence is incomplete unless
and until damage is suffered by the plaints, that tort is in fact
completed
on
the live birth of the injured infant, at which time the
infant has legal personality and is able to sue through his next friend,
albeit that injuries were inflicted
on
the infant while he was
in utero.
This last approach has the undeniable attraction of rendering
unnecessary any decision as to the legal status of the unborn child,
though it is implicit in it that such child does have
a
separate identity
from that of his mother. Indeed, even in America where the attribu-
tion of legal personality to the unborn child is by no means unknown,
exasperation has been expressed at the necessity felt by some judges
for formulating judgments
on
the basis of whether the unborn child
has legal personality. Thus, in the New Jersey case of
Smith
v.
Brennant
it was said that:
‘‘
The semantic argument whether an unborn child is a
‘
person
in being
’
seems to
us
to be beside the point. There is no question
that conception sets in motion biological processes which if
undisturbed will produce what everyone will concede to be
a
person in being. And regardless of andogies to other areas
of
law,
justice requires that the principle be recognised that a child
has a legal right to begin life with a sound mind and body.”
Notwithstanding the attractiveness of justice as a basis for a deci-
sion, justice need; to be enshrined in
a
legal principle and it is this
search for such
a
principle which has necessitated the formulae
referred to. The apparent absence of
a
principle and consequent
lack of English authority is reputed to have been one of the factors
which led to a settlement of the claims arising out of the thalidomide
tragedy,6 and it is, indeed, in the context of the settlement of
a
claim
in respect of pre-natal negligence that the English courts have come
nearest to having to decide the present question. In
Davies
v.
British
Picture Corporation Ltd.6
the defendant’s negligence had caused
a
ladder to fall on Mrs. Davies who was then pregnant. This apparently
resulted in the birth of
a
child the next day and its death a day later.
The mother sued as administratrix of the child but the defendant
settled the action by paying
€100
into court. With obvious relief the
judge said that he did not share counsel’s regret that the settlement
obviated the need to decide the point
of
law which might otherwise
have arisen.
If
the point had fallen to be decided the court would doubtless
have been swayed by the words
of
Lamont
J.
spoken some six years
4
31 N.J. 353, 364 (1960);
followed in the Michigan case
of
Womack
v.
Buch-
5
See
S.
v.
Distillers
Co.
(Biochemicals)
Ltd.
[I9691
3
All
E.R.
1412,
where a
horn,
187 N.W.
2d 218
(1971).
settlement was agreed on the plaintiff‘s withdrawal
of
all allegations
of
negligence.
-
6
(1939) S.J.
185
(Leeds
Assizes).
To continue reading
Request your trial