Reconceptualizing Preconception Torts

Abstract:     
During the past fifty years, courts have struggled with the issue of whether to impose a duty in prenatal tort actions. Within the subject of prenatal torts is an extremely controversial topic: Should courts impose a duty in actions involving preconception torts? Some courts refuse to impose a duty upon a negligent actor to protect a later-conceived victim against a risk of future harm. Whether a negligent act injures someone immediately or causes an injury in the future to someone who has not yet been conceived is irrelevant. Instead of banning recovery or applying bright-line tests to limit recovery, courts should examine general policy concerns underlying all negligence actions to determine whether later-conceived plaintiffs should be allowed to recover. Lack of foreseeability and other traditional policy concerns used to limit recovery in other types of negligence actions are sufficient to ensure that defendants are not held liable beyond the risks that they foreseeably create.

Number of Pages in PDF File: 44

Keywords: prenatal, preconception, preconception tort, prenatal tort, foreseeable harm, limited duty, negligence, medical malpractice

JEL Classification: K13

Accepted Paper Series