THE RIGHTS OF THE UNBORN CHILD AND TORT LAW

Dobson v.Dobson, A review and analysis of the Case

Written by Cristoph De Caermichael

This case tested the rights of the unborn child in Canada to prosecute his mother for injuries sustained in an accident. It explores the use of Tort legalities and helps us understand that the rights of the unborn conflicts with a Canadian woman’s Human Rights.  I will describe the case and point out the issues as stated by the courts and offer my opinion as a Canadian woman, how this case affected my decision to have a child.

In this essay we investigate the Rights of the Unborn Child and that injury to this developing fetus is considered under the law to have a right to compensation from their mother or anyone that causes injury to them, if they are born with a birth defect.

If a child after birth has no legal right to any pre-natal injuries then it’s a wrong that cannot be corrected. Parents both mother and father and even grandparents may be entitled to compensation for any loss they sustained, through an injury to their child or grandchild. So, now the rights of the fetus, as a child must also be considered and any damages may be compensated. (Dobson v. Dobson, pps1-63)

Simply there are laws to protect you from harm (Tort law) by the actions of others and the person who is responsible for wrongdoing incurs the liability for the damage by the defendant also known as the guilty party (tortfesaor). Tort law or civil law exists to provide compensation to the injured party.  (Dobson v. Dobson, p 1-63)

In civil law there are three rules that have to be established for tort action. One, the injured person, fetus or baby (plaintiff) must establish that the mother or defendant was under a legal duty to act in a particular fashion. Two, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly and finally the plaintiff must prove that he or she suffered injury or loss as a direct result of the defendant’s lack of care inflicting bodily injury. (Dobson v. Dobson 1-63)

In this case or any case a woman is held responsible, for any injuries that may or will occur to her unborn child. If harm is experienced to the fetus resulting in an injured or handicapped baby being born then the mother can be held responsible for her fetus or child’s injuries. As well as to anyone or anything that interferes with the normal delivery of that fetus, now child, after live birth can be held liable. (Dobson v. Dobson, p 2-6)

Canada has witnessed a few such cases that will be reviewed as part of this essay and to underscore how and why these liabilities of Tort and duty, come in to play.

Ryan Dodson was injured in utero, when his mother lost control of the car she was driving on March 14, 1993. There was a snowstorm in Moncton, New Brunswick, her car skidded out of control and she collided with another vehicle. Ryan was delivered a few hours later and has permanant mental and physical impairment, as well as cerebral palsy.                       The child through his grandfather acting as litigation guardian brought a law suit against his mother alleging that she should be liable in tort as the accident was caused by her negligent driving. The question being asked by the court is, if Ryan’s mother, Cynthia Dobson should be liable in tort for the injuries caused by the accident? (Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753)

Most women have pregnancies as it’s the only known vehicle for delivering another human being into this world. Most women do drive and as this is Canada, these cold weather conditions with ice and snow storms are an established fact. Driving at all times requires skill and care, but in winter the weather creates a more dangerous reality, It is a fairly common place part of every day life. Did a woman driving in a snowstorm while pregnant, provide due care? Perhaps the burden of proof of innocence weighed heavily on Cynthia Dobson, the issue of fetal rights and the use of drugs and alcohol is a controversial topic. That the medicalization, of a pregnant woman, is a contributing factor, in the premature death of a fetus. (Dobson v.Dobson 1-63). In the case history where several points discussing the application of British and American Fetal rights to this case. But as per the court, they were considered too extreme a violation of a Canadian woman’s right.

(Dobson v.Dobson p 25)

Questions asked where, was there duty of care as defined in the courts? Did the parties have a close relationship of dependant care? Was there no public policy for considerations’ that limit or define the scope of duty, the class or the damages?  In the case of Dobson v Dobson, it was decided that the mother did exercise the due care that was required so no tort liability was found. (Dobson v Dobson) To me it’s clear that the mother was injured during the collusion. Not Mother and (unborn) child.  Statistically speaking women have a 28% chance of injury through driving and a 21% risk of injury while at home. (Statistics Canada, Catalogue No.82-003, health reports (1995), vol7 No.2, at p12.) The court did find that a woman may negligently cause fetal injuries in many different ways. (Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753) That is the normal consequence of living and that injury although inflicted to the child was accidentally experienced.  Strangely, there were no statistical reports about prenatal

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