I have tried to follow most of this very interesting conversational chain (but have probably missed some, perhaps ones that say what I am about to say), and I have hesitated to jump in.   I finally read the Ontario decision, however.  While  I do not tend to be one of those academics who jumps up and says how badly courts are doing their work, the decision is really very weak.

I largely agree with the analysis of those who, like Rob Stevens, think it in principle not too difficult to understand how there could be a breach of a duty to a person who did not exist at the time the relevantly negligent conduct by the defendant occurred.   More generally, I do not see why Heaven v. Pender principles should not be broad enough in theory to accommodate a plaintiff's case against a physician where the plaintiff is a child who suffers from a disability that would not have existed had the plaintiff not acted negligently.   By the way, there may well be other cases in which a plaintiff would want to depict the tort claim by the neonate as akin to battery; here, the question of the status of the fetus might indeed become important.   To me, the most interesting theoretical questions are whether it would or should ever make a difference if the prenatal contact with the fetus -- as spatio-temporally located living organism -- can be characterized in some way other than negligence, and if so whether there are ever any grounds for doing so.   To the extent that there are real issues there -- and I simply do not know, because I have neither thought nor read sufficiently about it -- I see the prima facie conceptual and administrative reasons for desiring to handle it by legislation, quite apart from the obvious political reasons for doing so.    To the extent that all we are worried about is plain old negligence, I am skeptical that there are really great conceptual challenges to be faced, though of course there may be ethical, moral and political ones.

Onto the Ontario decision.   At four levels, the Paxton court's analysis is very disappointing.   First and foremost, it strikes me as having been handled adequately well (probably just right, in my view, but in any event, adequately well) at the trial court.   Why not just affirm on no breach, which seems to me amply justified, and probably correct?

Second, although as an American legal academic (albeit from Ontario), I do not stay on top of Canadian tort law as much as I would like, I am skeptical of the claim that this case presents a "new" duty question requiring Anns analysis.   The fact is that it is neither wrongful life nor wrongful birth; the failure of the father's vasectomy is relevant only to the breach question, as the case is presented, not to the duty question.   I find it hard to believe the Court needed to get into the Anns analysis.   But perhaps I am wrong.

Third, and most seriously, the Stage 1 Anns analysis reaches an untenable result bv creating a nuanced argument and applying it in a simpleminded way.    If it were correct, a physician prescribing a known teratogen to a woman known to be pregnant today would face no liability to the disabled child.  A physician repeatedly performing X-rays on the abdomen of a woman of child-bearing age would face no liability.    All of this would be the same if it were the case that the mother would have declined such treatment if fully informed.   The no-duty argument offered sweeps it all in.   The Paxton court's argument is, on one way, quite nuanced: it is based on the idea that a physician owes it to the mother to prioritize her needs and her decisions, and there is a potential for a conflict of interest if the child is also recognized as one to whom a duty is owed.   I myself have made similar arguments with regard to the need for careful thinking by courts before physicians or lawyers are saddled with extra duties to third parties; I think as a structural point, it is well taken.   But it certainly does not follow that "no duty" to any future child under any circumstances must be the rule.   It could follow, for example, that there is a duty at least to inform the mother of the risks to future children, and to offer professional advice about such risks, and that this duty runs to the future child as well as to the mother.   It would be a question of principle, policy, and politics whether a jurisdiction wanted to add a rule saying that there are certain decisions regarding risks to future children that a physician may decline to take, notwithstanding the mother's choice, or must decline to take, notwithstanding the mother's choice.    I do not want to go into whether a jurisdiction would ever by right to accept or reject some form of this rule.   The point is that the fact pattern and lower court decision before the court in  Paxton simply does not require the judge to think about any of these questions, except for thinking about them enough to know that it would be a mistake to sweep them away in one step.

Finally, the stage 2 of Anns is gratuitous and sloppy.   It is a conceptual mistake to suppose that having liability to the child requires thinking of the fetus as a rights-bearer of a sort that would entail the impermissibility of abortion or even restrict the rights to abortion in any way.   Recognizing legal duties to make baby food carefully, even before the baby is born, does not entail anything whatsoever about abortion rights.   The duty rejected in Paxton is of the same sort.

Ben Zipursky

Professor & Quinn Chair

Fordham Law School

140 West 62nd St.

New York, NY 10583

(212) 636-6106