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Date:
Tue, 22 Nov 2005 11:42:01 -0500
From:
Jason Neyers
Subject:
More on maternal torts in Alberta
Why
doesn't imposing liability via statute infringe the Constitutional
interests in liberty and autonomy that were said (at least by the
concurring judgment) to justify removing liability from the mother
at common law? It would seem strange that one could impose liability
in public law (where the Charter applies directly), when one could
not do so in private law (where the Charter is said to apply only
indirectly).
Cheers,
Vaughan
Black wrote:
Colleagues,
my note about Alberta's introduction of the Maternal Tort Liability
Act generated more commentary than I expected, so it may be of interest
if I provide a little more background.
Earlier
this year a private member's bill was introduced in the Alberta
legislature: The Brooklyn Hannah George Rewega Right of Civil Act
Action. It would give a retroactive right of action to one child
allegedly injured by her mother's negligent driving while still
in the womb. It's only a private member's bill, but it's from a
gov't backbencher who has been campaigning vigorously to get the
legislature to enact this right of action for his seriously disabled
young constituent.
Obviously
if the bill passed it would give rise to the question of why this
one infant should be singled out from all others. So the gov't has
brought in the Maternal Tort Liability Act. Of course the MTLA would
not be retroactive so it would not apply to the Rewega case, but
it would make the Rewega bill, should it be enacted, somewhat less
anomalous.
It's
hardly a picture of well thought out law reform, but there it is.
And of course it's constitutional. (Though in a year or three when
the Alta. gov't bring in a bill that purports to grant them the
right to lock up pregnant women who are addicted to crystal meth
[which they are already proposing to do to minors], and purports
to justify it by pointing out that such persons already owe duties
to their fetuses to drive carefully, we may have an interesting
constitutional battle.)
--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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