Dear Rob and all:

But if the baseline position is that the child/fetus has no rights of personal integrity until birth then absent the right you posit (of healthy birth) then A would be at liberty to injure the child/fetus. Once the right you posit is said to exist it appears that A now has to restrain his or her actions. In effect, the right you posit is one that forces A to benefit the child/fetus by not factually effecting it even thought the right to personal integrity says otherwise.

What would justify this right of healthy birth?  And how would this justify only a right of healthy birth and no other rights to factual positions? I can't really think of another situation where we have rights that secure us a factual position that our other rights say is not protected, absent some sort of  assumption of responsibility through contract or otherwise.  

Think of a case like Pierson v Post and assume that instead of catching the fox, the second hunter merely injured it. Thus when the first hunter captured the fox he sued for this factual injury. Your solution seems akin to saying that although the first hunter's property rights were not injured (since they did not crystallize until capture) the second hunter is liable since there is a right of "healthy capture" that the second hunter infringed. When phrased this way, doesn't it seem that the law is creating a duty on the second hunter to benefit the first (at least in the limited sense that he cannot make the fox factually worse than it would have been had it come into the first hunter's possession untouched)?

Is the privilege understanding not more compelling? Maybe I am just not understanding the concept of healthy birth.

Cheers,

Jason Neyers
Associate Professor of Law & 
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435 

Robert H Stevens wrote:

My answer emphatically does not involve any duty to confer a benefit. It
involves a duty not to make the child have an unhealthy birth when she or
he would otherwise be born healthy. You are not under any duty to cure
sick mothers.

Another alternative, although a more controversial one, is to say that the
child does acquire rights upon conception but that the rights (or their
exercise?) are conditional upon birth. That is more difficult though as it
depends upon whether you think we can hold rights before birth.
R



  

Dear Martin and all:

The fact that there is a limitation on the fetus's/child's rights in that
they can't sue unless they are born alive seems to indicate that this is
not the ordinary application of D v S principles.

Rob really focuses on the problem with these cases: it is that at the
moment the child is said to become a bearer of rights it has already
suffered the harm. So there is no injury to the child when it is born, it
just exists as it exists. It appears that the Australian cases have not
really dealt with the issue at all.

The tension in the Canadian cases is that the courts want to protect the
mother's right to deal with her own body in the way she sees fit (even if
this means aborting the fetus) yet simultaneously protecting the
fetus/child from interference from others. On first impression, I do not
find Rob's solution convincing since it seems to create a right in
everyone to assist the fetus/child, make it better off, yet one that is
limited to pre-birth activities and needs. I can't see why would this
right to basic assistance would be limited to pre-birth needs?

Perhaps another way to interpret the cases is to say that the right to
bodily integrity exists from conception but that the mother (and those
acting on her behalf) have some sort of privilege/immunity vis-a-vis the
child/fetus that is generated by the unique relationship between mother
and fetus (as discussed in Dobson). In that way the mother is entitled to
do things she considers in her best interest (including aborting the child
or taking risky drugs) but the fetus/child is protected from outside
interference. IIRC, Ernest Weinrib made a somewhat similar argument
(though not using the concept of privilege in Human Rights and Private
Law) relying on the notions of special susceptibility and the case of
Rogers v Elliot.

Does that seem like an adequate explanation/interpretation of the cases?

----- Original Message -----
From: Martin Hogg <Martin.Hogg@ed.ac.uk>
Date: Wednesday, January 14, 2009 6:43 am
Subject: RE: ODG: Duties to the unborn
To: "obligations@uwo.ca" <obligations@uwo.ca>
Cc: "Jones, Michael" <M.A.Jones@liverpool.ac.uk>

    

If I may add a few words to Michael's earlier comments (although
I profess no great expertise in this field, so forgive me if I
am missing something crucial in my remarks).

The Congenital Disabilities (Civil Liability) Act 1976 also
applies in Scotland, and was enacted partly as a result of work
done by the Scottish Law Commission leading up to the
publication of its Report 'Liability for Ante-Natal Injury'
(1973, Command Paper Cmnd. 5371). In line with Michael's
comments on a dearth of English cases discussing the duty aspect
of the 1976 Act, I can find no reported Scottish cases looking
specifically at that issue. Most reported cases about ante-natal
injuries in Scotland have been about the claims of relatives of
deceased infants raised under the Damages (Scotland) Act 1976.

However, even prior to the passage of the Act, the SLC had
suggested in its 1973 report that:

"although there is no express Scottish decision on the point, a
right to reparation would, on existing principles, be accorded
by Scots law to a child for harm wrongfully occasioned to it
while in its mother's womb, provided it was born alive."

This suggested, I think, the possibility of a free standing duty
of care owed to the child, one not derived (as in s1(3) of the
1976 Act) from any duty owed to the parent. That also seems to
me to be consistent with what was said in a post-1976 Act case,
Hamilton v Fife Health Board (1993 SC 369), which concerned
injuries sustained by a child, which subsequently died, during
its delivery and a claim for damages by its parents. In the
Appeal Court, Lord McCluskey asserts (if I read him correctly in
the following passage) that there is a freestanding duty owed to
the child, and not just to the parents, in respect of ante-natal
injury, but that any cause of action in the child does not arise
until the child is born:-

"There is no difficulty whatsoever in Scots law in holding that
doctors engaged in the delivery of a foetus owe a duty of care
to avoid injury to that foetus: that is trite. But once the
foetus ceases on birth to be a foetus and becomes a person there
is a concurrence of injuria and damnum and the newly born child
has a right to sue the person whose breach of duty has resulted
in the child's loss. The coming into existence of that right to
sue does not depend upon the application of any fiction. It
depends upon the neighbourhood doctrine of Donoghue v.
Stevenson. The doctors engaged in the medical work of assisting
in the delivery of a child can obviously foresee that a failure
to exercise due care and skill by them may result in injuries to
the foetus, being injuries which will cause the child to suffer
loss: if the loss to the living child is the foreseeable, direct
and probable consequence of the failure to exercise due care and
skill at an earlier stage there is a breach of duty owed, in the
law of negligence, to the child and that breach occurs when the
child is born. If the injuries with which he is born are
injuries to his organs or skeleton or tissues then they are
properly and sensibly described as "personal injuries" even
although when they were inflicted he did not enjoy legal
personality; they are injuries to his person although not to his
legal persona. They are to him an impairment of his physical
condition." (at p382)

So, these comments do give a little definition to the duty of
care owed to a child in respect of ante-natal injuries, but the
law seems to me to be still quite underdeveloped. What the
Appeal Court is asserting however is that the child need not
rely on the civilian principle 'nasciturus pro iam nato habetur
quotiens de eius agitur' (in a matter affecting its interests,
an unborn child in utero is deemed to be born) in order to bring
its claim: such a claim arises from ordinary Donoghue v
Stevenson principles.

Martin Hogg
Edinburgh Law School


--
The University of Edinburgh is a charitable body, registered in
Scotland, with registration number SC005336.

      

--
Jason Neyers
Associate Professor of Law &
Cassels Brock LLP Faculty Fellow in Contract Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435