Pregnant Women and the 'Born Alive' Rule in Canada

Tort Law Review, Vol. 8, pp. 713-19, 2000

7 Pages Posted: 17 May 2006

See all articles by Ian R. Kerr

Ian R. Kerr

University of Ottawa - Common Law Section

Abstract

This article examines the theory of liability for pre-natal injuries adopted by Canadian courts. In 1933, the Supreme Court of Canada became the first common law appellate court to allow a child born alive to succeed in negligence against a third party for pre-natal injuries. Though the Court maintained that legal personhood commences at birth, it created the judicial artifice allowing a child born alive to be granted the legal rights of personhood the moment a careless act is committed against it in utero. While the "born alive" rule may appear unproblematic vis-a-vis third party negligence, it becomes theoretically unruly in cases where a child sues his or her own mother for pre-natal injuries, The Supreme Court faced this issue in Dobson v. Dobson and for policy reasons found that pregnant women are immune from maternal tort liability in negligence. Notwithstanding the nobles of the Supreme Court's commitment to protecting the autonomy of women, the Author argues that the decision to adopt public policy considerations to the exclusion of a principled approach ultimately sidesteps the issue of when the relationship between a pregnant woman and her foetus gives rise to a legal duty of care.

Keywords: pre-natal injuries, born alive rule, prenatal negligent act, maternal tort liability

Suggested Citation

Kerr, Ian R., Pregnant Women and the 'Born Alive' Rule in Canada. Tort Law Review, Vol. 8, pp. 713-19, 2000. Available at SSRN: https://ssrn.com/abstract=902453

Ian R. Kerr (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

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