The Rights Of Action Of An Unborn Child

While a "wrongful life" claim is a novel question of law, it is certainly not a rare one. Such a claim has been examined by the Canadian courts on several occasions and, most recently, by the Ontario Superior Court of Justice in Florence v. Benzaquen1.

What is a Claim for "Wrongful Life"?

It is settled law that a child can sue for injuries as a result of negligence committed while in the womb by third-party tortfeasors, once born alive. Common examples are medical negligence during the labour and delivery process or as a result of injuries sustained in a motor vehicle accident where the force of the impact causes injury to the foetus.2

A claim for wrongful life, however, is one that is asserted by a parent or child for a pregnancy that results in a birth where the child has birth defects or genetic disorder and where it is argued that but for the negligence of the defendant, the child would not have been born.

Facts

In Florence, the Court considered the duty of care owed to a future unborn child, i.e. a child not yet conceived, by an obstetrician / gynecologist who had prescribed a fertility drug to the plaintiff mother. A triplet pregnancy ensued and ended in premature birth of the infants, all of whom have been diagnosed with cerebral palsy as a result of their prematurity.

The plaintiffs argued that the infants were born prematurely as a result of the number of foetuses carried in utero. But for the alleged negligence of the defendant doctor in prescribing the fertility drug, the triplets would not have been born. This is a wrongful life claim.

In Florence, Justice Wilson examined a variety of cases where an infant's right of action has been denied in consideration of whether the Florence triplets have a valid claim at law in circumstances where the infants were yet to be conceived at the time the alleged negligence occurred, i.e. the prescription of the fertility drug.

The Court in Bovingdon (Litigation Guardian of) v. Hergott3, on very similar facts, found that there was no duty of care owed by the defendant doctor to future children not to cause them harm in prescribing fertility drugs to the mother.

In Paxton v. Ramji4, the defendant doctor prescribed Accutane, a drug for the treatment of acne. The plaintiff became pregnant shortly thereafter, and her child was born with both physical and mental disabilities. The court concluded that there was no duty of care owed by the mother's doctor to a potential future child.

In Dobson...