Does a Mother owe a Duty of Care to her unborn child?

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ASSIGNMENT 1: TOPIC 2 OVERVIEW Traditionally, legal protection was rarely granted to unborn child and in the event they were granted such protection, it was strictly dependent on their live birth.[1] Since then, the law governing a mother’s liability for prenatal injury has evolved and varies drastically across many jurisdictions. For example, in Canada, the courts generally take into account several policy factors to grant them immunity from liability. It is to be expected that a large majority of society would accept the proposition that a mother is required to care for and protect her child for many reasons such as emotional and moral reasons.

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However, it is unclear whether such a percentage would agree with the fact that a mother would be liable for causing prenatal injuries to her unborn child. Perhaps the most important issue of granting mothers full immunity is that the child would not be compensated for their prenatal injuries from their mother and also from third parties like insurers. This article will examine the current law across various jurisdictions like Canada and the United Kingdom (particularly the various policy considerations adopted) in order to ascertain the most suitable approach to be implemented in Australia, since the question whether a mother owes a duty of care towards her unborn child is still unsettled in this jurisdiction. This article will also consider arguments for and against imposing a duty of care. Lastly, it concludes with a suggestion that a mother should not be liable for causing prenatal injury to her unborn child other than in motor vehicle accidents[2] and why this will be the most appropriate approach.

  1. INTRODUCTION

Essentially, a duty of care is ‘an obligation imposed on a person to take reasonable care to ensure that they do not cause another person to suffer harm’.[3] The relationship between a parent and a child is one such circumstance that draws such a duty of care to be imposed in some jurisdictions. It has been accepted by many that the duty of care outlined above will only accrue when a child is born and possesses legal rights.[4] Having said that, some commentators are of the view that since a fetus is completely dependent upon his mother for nourishment and life, a pregnant woman should owe a similar duty of care to her unborn child.[5] It is without a doubt that the right of an unborn child to sue its mother will bring about several ethical and moral issues that will put a strain on family ties. In Australia, when a child is born it is automatically entitled to sue for breach of rights.[6] The courts have extended this view to include situations where the unborn child sustains injuries prior to being born.[7] It is well established that the courts have held third parties like negligent road users[8] and doctors[9],

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