Australian mother sued by child injured in utero.

[Guest guest]

I don't know what the eventual outcome of this was though..

Lancet; 9/14/91, Vol. 338 Issue 8768, p687, 2p

Section: NEWS & COMMENT

Medicine and the Law

The New South Wales Supreme Court awarded an 18-year-old woman $A2.8

million ([underbar]hx01b[underbar]GCP[underbar]hx01c[underbar]14

million) after she sued her mother for negligence which caused her

permanent injury while in utero. The mother's motor insurers were co-

defendants. The case has been described as " a landmark " and there are

concerns in Australia that the decision will result in a flood of

claims by children injured as a result of the carrying mother's

negligence, including excessive smoking and drinking and drug-taking

as well as careless driving.(n1)

The plaintiff was born in May, 1973, with cerebral palsy. She has

impaired sight and speech and has never had full control over her

body since birth. She alleged that her condition was caused by

injuries when, 4 months before her birth, her mother had taken part

in a cattle muster on the family ranch. Her mother had been driving a

pick-up truck when she saw a steer break away. She attempted to head

it back bur the truck hurtled down a slope and hit a bank. She had

little memory of the accident. The trial judge found that she had

driven and behaved negligently and held (with the assistance of two

British paediatric neurologists flown out to assist the plaintiff's

Australian team) that the accident was the probable cause of the

cerebral palsy. The defendants (in effect the motor insurers)

contended that at the time of the accident the plaintiff was not a

legal person who could be identified as the victim of the mother's

action and that the fetus and her mother were essentially one

personality and there could not be a legal duty of care owed by the

mother to herself The judge disagreed. He said: " I would hold that an

injury to an infant suffered during ... its journey through life

between conception and parturition is not injury to a person devoid

of personality other than that of the mother-to-be. 's

personality was identifiable and recognisable. "

The insurance company has indicated that it will appeal.

A child has no separate legal persona from its mother while in utero

under British law. However, once born alive it can, if it can prove

that it was negligently injured while in utero, claim damages as a

separate person under the common law--though public policy would

probably disqualify an action against the mother. There was no

decision precisely on the point of whether a child injured while a

fetus can bring a negligence action against a third party until the

matter was expressly considered in B v Islington Health Authority by

Potts J in the High Court.(n2) He said that " The fact that the

plaintiff was undefined in law and without status at the material

time was neither here nor there " . The incident complained of took

place in 1966. The fetus was injured as a result of a negligently

performed dilatation and curettage while the mother was pregnant. The

fetus survived in a damaged state to be born. The common law was

superseded by the Congenital Disabilities (Civil Liability) Act 1976,

in respect of any incident after that Act came into effect. The

fetus's rights under the 1976 Act are restricted to accord with what

is considered desirable as a matter of public policy. They

crystallise only if the child survives for at least 48 hours, and

claims cannot be pursued against everybody.

Before the 1976 Act was passed much thought was given to the question

of whether a fetus injured in utero should be entitled to sue its

mother. The Law Commission decided that it should not because it

could compromise the parent/child relationship and could be used as a

weapon in matrimonial disputes. English legislation therefore

excludes claims by a child against its mother except where injuries

are sustained during traffic accidents; here special policy grounds

and the availability of insurance were held to justify admissibility.

Where a mother is not covered by insurance, however, yet involved in

a traffic accident (eg, as a negligent pedestrian) she could, it

would seem, be liable to the child in damages.

In Scotland the question remains open. " ... there is no reason in law

to exclude a claim by a child against its mother in respect of

prenatal injuries. It is possible, however, that the courts may be

unsympathetic to such claims on policy grounds. " (n3)

In Britain, these concerns have so far had little practical impact--

indeed, all over the world there are pregnant women smoking,

drinking, and engaging in hazardous activities. In England, at least,

a fetus must take its mother as it finds her--and if its interests

and the mother's compete, even to the point of bringing the fetus'

existence to an end, it is the mother's rights and interests that

will prevail in law if the mother wishes.

Different attitudes have been expressed in the USA, where women have

been constrained and confined with a view to protecting their unborn

child from their mother's unsatisfactory lifestyle. In England a

similar action which purported to be brought by and on behalf of the

unborn child was dismissed as disclosing no cause of action since the

fetus had no independent locus stand) from its mother, who had a

wandering life-style and mental problems.

While it remains undesirable that mothers put their unborn babies at

risk by negligent or reckless behaviour, it does seem unsatisfactory

for mothers to be at risk of suit from their disgruntled or

dissatisfied children perhaps twenty years later. It has been mooted

that this Australian case might strengthen the hand of the anti-

abortion lobby, but anti-abortion campaigners should bear in mind

that the decision was not in relation to a terminated life in utero.

It is difficult to see how a child born alive though prematurely

after a lawful abortion can sue unless the procedure was negligent.

(n1.) Milliken R. Independent, Aug 7, 1991: 8.

(n2.) Brahams D. Duty of care to unborn child. Lancet 1990; 336: 1572

(n3.) Mason JK, McCall A. Law and medical ethics, 3rd ed.

London Butterworths, 1991: 139.

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By Brahams