It's true that in Hohfeldian terms D can't owe a duty to C (not) to do X

without C having a right that D (not) do X. However, it is consistent with

Hohfeld that D can owe a duty (not) to do X to someone other than the

beneficiary of that duty. Thus duties could be owed in respect of an unborn

child to someone other than that unborn child (obviously) which perhaps then

crystallise when the child is born or at some other point. Further, if one

thinks rights protect interests, it is possible to say that the unborn

child, like disabled persons, has rights, though unenforceable. The standard

objection to that account is that it makes all the beneficiaries of a duty

the bearers of rights. But perhaps the objection can be overcome.

Best,

Sandy Steel

Doctoral Candidate

Corpus Christi College

Cambridge

----- Original Message -----

From: <C.E.Webb@lse.ac.uk>

To: <robert.stevens@ucl.ac.uk>

Cc: <jneyers@uwo.ca>; <obligations@uwo.ca>

Sent: Wednesday, January 14, 2009 7:45 PM

Subject: RE: ODG: Duties to the unborn

>I don't think hypothetical people have rights.  But if you are to say that

>C's right correlates to D's duty (and if you mean it in the way Hohfeld

>meant it), you cannot say the duty exists prior to and independently of the

>right.  D can't owe a duty to C (not) to do X without C having a right that

>D (not) do X.  They are one and the same thing.

>

> Charlie.

>

>

> -----Original Message-----

> From: Robert H Stevens [mailto:robert.stevens@ucl.ac.uk]

> Sent: Wed 1/14/2009 6:32 PM

> To: Webb,CE

> Cc: robert.stevens@ucl.ac.uk; jneyers@uwo.ca; obligations@uwo.ca

> Subject: Re: ODG: Duties to the unborn

>

>

> Charlie wrote

>

>>

>> I have no qualms with the conclusion that injuries resulting from

>> actions occurring before a claimant's birth may be actionable.  However,

>> I don't think it's so easy to say that such a claim arises from the

>> breach of a duty owed to the claimant without also accepting that we can

>> owe duties to - and rights can be held by - as yet unborn children

>> (indeed even "unconceived" children if the baby food example is followed

>> through).  Even if we were to say that the harm is only suffered upon

>> birth, the conduct of the defendant to which such a duty would apply

>> precedes this.  If there are no rights pre-birth, there can be no

>> corresponding duties.

>>

>

> I don't accept that.

>

> Say a babyfood manufacturer manufactures powdered baby milk on 1 February

> 2009. A baby is conceived on 1 March 2009 and born on 1 December. On 2

> December she is given some of the milk, and is poisoned because the milk

> was carelessly manufactured.

>

> The earliest the child could be a right-holder is upon conception (the

> latest is birth). The manufacturer's duty is owed to all those babies who

> he could reasonably foresee would be injured. That the right-holder, and

> indeed the right to which the duty correlates, did not exist at the time

> of manufacture is neither here nor there. There is a wrong to the child on

> 2 December even though the relevant right did not exist at the time of the

> negligent manufacture. The duty correlates to a future right, not a

> current one, in this case.

>

> I can't see how hypothetical people, who may never exist, can have current

> rights today, although future persons will acquire rights which we are,

> today, under a duty to respect. So, it is not meaningless to talk of the

> "rights of future generations and our need to respect them", even though

> those rights don't exist yet, and might not if there were a global

> catastrophe. It is only the duty which exists today.

>

> Jason wrote

>

> "Aren't you really creating a right to bodily integrity in disguise

> then? Isn't it simpler to recognize the right to bodily integrity from

> conception."

>

> I don't think it is the same as the right to bodily integrity, as I

> explained. It might be simpler to say we acquired the right to bodily

> safety upon conception, but the problem is that the caselaw seems to say

> we don't. The unborn cannot sue, for example. So we need another

> explanation. Unless you live in England.

> R

>

>

>

>

>

> Please access the attached hyperlink for an important electronic

> communications disclaimer:

> http://www.lse.ac.uk/collections/secretariat/legal/disclaimer.htm