On Mothers, Babies and Bathwater: Distributive Justice, Tort Law and Prenatal Duties

DOI10.1177/0964663905051218
Date01 June 2005
Published date01 June 2005
ONMOTHERS, BABIES AND
BATHWATER: DISTRIBUTIVE
JUSTICE, TORT LAW AND
PRENATAL DUTIES
TSACHI KEREN-PAZ
Colman Law School, Israel; Cornell Law School, USA
ABSTRACT
In this article I seek to apply a general claim about tort law – that it should promote
as one of its goals a better attainment of distributive justice – to the context of
maternal prenatal duty. My argument is that, contrary to common belief among
lawyers, the negative burden that a maternal prenatal duty of care would place on
potential defendants’ autonomy, although significant, is not a convincing reason in
itself to oppose such a duty. Crucial to this argument is the fact that it is the autonomy
of women that is limited. Moreover, and somewhat counter-intuitively, I argue that a
genuine distributive-egalitarian concern can in fact support the imposition of liability,
within the limits of actual insurance coverage, when certain conditions are met, at
least according to one understanding of this concern.
KEY WORDS
distributive justice; duty of care; egalitarianism; negligence; prenatal duties
INTRODUCTION
IN THIS article, I seek to apply my egalitarian approach to tort law (Keren-
Paz, 2000; 2003; 2004) by critically examining the desirable contours for
a maternal prenatal duty of care in tort law. This article attempts to
achieve two goals. The first is to justify the judicial rejection of an unlimited
duty of care, while emphasizing that such justification is ingrained in a
distributive-egalitarian concern regarding women’s autonomy interests,
SOCIAL &LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(2), 179–196
DOI: 10.1177/0964663905051218
rather than an abstract concern for autonomy. A second goal is to show how
an egalitarian concern about women’s well-being might, perhaps counter-
intuitively, justify recognition of a duty of care, when the mother’s liability
is insured.
While it is well established that third parties owe a duty of care to a born-
alive child (Payton v Abott Labs (1982); Montreal Tramways Co. v Leveille
[1933]), the question of whether tort law should impose liability on pregnant
women for seemingly negligent behaviour during pregnancy resulting in
injury to the born-alive child receives different answers in different jurisdic-
tions. In Canada the Supreme Court flatly denied the possibility of imposing
a judicial duty of care on pregnant women towards their born-alive children
(Dobson v Dobson [1999]). In New South Wales, the court imposed a duty
of care in a scenario similar to Dobson in which the pregnant woman was
involved in a car accident which injured the child subsequently born. The
New South Wales court noted the different policy considerations in cases
involving an insured activity that breaches the general duty of care, as
opposed to cases in which the lifestyle choices made by the pregnant woman
allegedly injured the child (Lynch v Lynch (1991): 415).In England there is
an explicit statutory immunity in tort for pregnant women in relation to
prenatal negligence, with an exception for negligent driving (Congenital
Disabilities (Civil Liability) Act 1976 (UK): s. 1(1)). The few jurisdictions in
the United States that have considered this dilemma have reached inconsist-
ent results. A duty of care was recognized where the mother took a medicine
while pregnant, causing the child to be born with discoloured teeth (Grodin
v Grodin (1980)); when a seven-month-pregnant woman was hit by a car
while crossing the road not in a designated crosswalk and was insured (Bonte
v Bonte (1992)); and when a pregnant woman was involved in a motor
accident (National Casualty Company v Northern Trust Bank (2002)). Duty
was denied when a pregnant woman was involved in a motor accident
(Stallman v Youngquist (1988); Remi v MacDonald (2004)); and when a
woman abused drugs during pregnancy (Chenault v Huie (1999)). In all the
cases where a duty was recognized (Grodin, Bonte, Lynch, National Causalty
and the UK legislation), insurance existed, despite the fact that this was not
always clear from reading the case (Robertson, 1983: 441). Essentially, then,
courts’ decisions can be grouped into those rejecting a duty or making it
conditional upon insurance. Moreover, in National Causalitythe liability was
expressly restricted up to the limits of the mother’s liability insurance.
An example of a sweeping rejection of duty is the holding of the majority
in the Canadian case of Dobson [1999]. In Dobson, the defendant had been
involved in a car accident, caused by her own negligent driving, while she
was 27-weeks pregnant. As she was insured, she wanted to be found liable
in the suit, brought in the name of her plaintiff-son by his grandfather.
Focusing mainly on autonomy concerns (pp. 768–90), the Court held that a
duty in tort should be categorically denied. The Court refused to distinguish
between ‘lifestyle choices’ and the breach of a general duty of care. Lifestyle
choices are discretionary decisions by the pregnant woman on how to lead
180 SOCIAL & LEGAL STUDIES 14(2)

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