Can an Unborn Child Sue His Mother?

TORONTO—Canada's pro-life community will watch with more than passing interest a Supreme Court decision weighing the right of children to sue their mothers for injuries suffered prior to birth.

The case revolves around 5-year-old Ryan Dobson of Moncton, New Brunswick, who was injured in a March 1993 car accident while his mother, Cynthia Dobson, was 27 weeks pregnant with him. Cynthia Dobson was a passenger in a car that plowed into a pickup truck during a snowstorm near Moncton. Ryan, who was born prematurely as a result of the accident, is permanently handicapped with cerebral palsy and other disabilities.

Ryan's grandfather Gerald Price, initiated a lawsuit in 1995, partly to determine responsibility for Ryan's mounting health care costs. The suit also alleged that Ryan's mother was negligent for engaging in risky behavior while pregnant.

In 1997, the New Brunswick Court of Appeal ruled that Ryan had the right to carry the lawsuit forward. The lower court ruling has been appealed by Dobson's insurance company which has argued that granting unborn children the right to sue their parents infringes severely on a pregnant woman's lifestyle and freedom of mobility.

The Canadian Supreme Court began hearing the appeal Dec. 8. While the court has deferred a decision in the matter, the case focuses renewed attention on the rights of the unborn in Canada. Under section 223(1) of the Criminal Code, an unborn child does not acquire full legal protection “until it has completely proceeded in a living state from the body of its mother.”

Canadian Church and pro-life groups have long argued that this “born alive” law is a legal anachronism. They suggest that advances in ultrasound technology and fetal viability clearly show the need for a new law extending legal protection to the preborn child. Pro-life interveners in the case argue that since children have the right to sue their parents for negligent conduct after birth, preborn children should not be deprived of this right.

Pro-abortion groups meanwhile, are concerned that granting an unborn child the right to sue its parents for injuries suffered before birth could jeopardize the country's abortion law. These groups argue that a court decision upholding Ryan Dobson's right to sue his mother will open a Pandora's box of lawsuits based on a mother's lifestyle choices during a pregnancy. They also suggest that an unborn child and its mother are “one entity” and that this precludes any legal action on the part of an unborn child toward its mother.

The Catholic Group for Health, Justice, and Life—an organization representing Canada's Catholic bishops, the Knights of Columbus, the Catholic Health Association of Canada, and the Catholic Women's League—has obtained intervener status in the Dobson v. Dobson case.

In a Dec. 4 statement, the Catholic group said human life deserves equal protection of the law, especially at its most vulnerable stages, including prior to birth. The group pointed out that children can sue third parties for injuries sustained prior to birth, but are denied the right to sue their own negligent mothers.

“Not to allow the child the same right with his own mother sets up an inequality before the law,” the Catholic body said in its statement. “[A] woman who is pregnant and negligently causes harm to a third party who is also pregnant, can be sued by the born child of the third party, but not by her own child.

“The group also disputes the contention that allowing born children to sue their mothers for prenatal injuries will … set the stage for minute investigations by intrusive courts into the lifestyle choices of pregnant women. The same argument could be made with respect to children suing their parents for injuries incurred after birth, but their right to sue is well-established. Why should it be otherwise for injuries incurred before birth?”

The Catholic bishops said a law protecting the rights of the preborn child should reflect only “the necessary elements of a negligence claim,” including causation and damages. “During the pregnancy,” the bishops added, “the mother would not be required to conduct herself perfectly, but only to exercise the same reasonable standard of care expected of pregnant women.”

Other church groups, including the Evangelical Fellowship of Canada (EFC), also argue that the Dobson case is the latest in a series underscoring the need for a change in the Criminal Code. The EFC, which represents nearly 30 major Protestant denominations, has also won intervener status in the case.

As in similar cases, the EFC will argue that the court must reject the legal fiction that someone must be “born alive” before she or he is worthy of protection. “Medical knowledge and technology make this practice outdated,” the Protestant group added.

Meanwhile, the Canadian Abortion Rights Action League (CARAL), which has also obtained intervener status in the Dobson case, opposes the child's right to sue his mother for injuries incurred prior to birth. “CARAL believes that the final ruling will have broad implications for the equality and autonomy of all Canadian women,” president Kim Luton said in a Dec. 8 statement.

CARAL executive director Marilyn Wilson said: “This case raises many concerns that ought not to be decided in the context of this one case. This case, at first glance, appears to be limited to motor vehicle cases. But the principles upon which the case was decided in the lower courts can extend beyond motor vehicle cases,” Wilson added. “Potentially, all the ordinary activities of daily living that women engage in while pregnant such as working, operating equipment, engaging in sports and recreation, and lifestyle issues could be the subject of a lawsuit.”

Wilson also said a decision in favor of Ryan Dobson could create “an adversarial relationship” between a woman and her child.

However, Jakki Jeffs, executive director of the Alliance for Life (Ontario) organization, believes CARAL's prime interest in the Dobson case is protecting the present abortion law. “CARAL has been quite active in this matter, and to me it indicates they are worried about a possible decision protecting unborn children,” Jeffs told the Register.

She also dismissed CARAL's chief contention that an unborn child and its mother are one entity. “Science has long made the link between the mother and the unborn child as separate beings, and it's untenable to argue that the unborn children should have no legal rights until they are born alive,” Jeffs said. “I'm very interested in what the Supreme Court will rule in this matter. It's about time we had a proper decision in favor of these little ones.”

Mike Mastromatteo writes from Ontario.