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ABSTRACT
The rationale for current tortious actions against mothers for injuries caused in utero is examined and defended as a means of the harmed born alive child seeking financial compensation from insurance companies. The upshot of this argument is that within this range of cases maternal tort immunity should be denied as it prevents the mother from being able to seek compensation for her injured born alive child. In effect, under current circumstances, maternal immunity hurts both the mother and her offspring. However, looking ahead to the likely progress of medical science and social justice studies, maternal immunity should be given serious consideration for cases that may emerge from a new and varied range of medical technologies. These technological developments include epigenetics, genetic engineering, and ectogenesis (the use of an artificial womb), and the issues these technologies raise – which include the status of the foetus and the permissibility of abortion, as well as the definition of ‘harm’ and ‘disability’ – are complex and have disturbing implications for maternal liability.
Acknowledgements
I am indebted to Karen Drake of the Bora Laskin Faculty of Law and to Sonja Grover for their many helpful comments on earlier drafts of this essay.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Jason P. Blahuta holds a Ph.D. in philosophy from the University of Ottawa, and is an associate professor of philosophy at Lakehead University. His main areas of research are Machiavelli and comparative philosophy but he also actively researches across a wide range of social-political issues including just war theory, terrorism, multiculturalism, liberal theory, and environmental ethics.
Notes
1 The born alive rule was established in Montreal Tramways Co. v. Léveillé [1933] SCR 456: see Ian R. Kerr, ‘Pregnant Women and the “Born Alive” Rule in Canada’, Tort Law Review 8 (2000): 713–19, 713.
2 Dobson (Litigation Guardian of) v. Dobson [1999] 2 SCR 753; (1999) 174 DL4 (4th), Judgments of the Supreme Court of Canada, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1716/index.do (accessed March 7, 2017).
3 Kerr, ‘Pregnant Women’, 715.
4 Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton NJ: Princeton University Press, 2009).
5 Christopher J. Wiener, ‘Transgenerational Tort Liability for Epigenetic Disease’, DePaul Journal of Health Care Law 13, no. 3 (2011): 319–37, 325.
6 Sarah Knapton, ‘“Artificial Womb” Breakthrough Sparks Row Over How Long Human Embryos Should Be Kept In Lab’, The Telegraph, May 4, 2016, www.telegraph.co.uk/science/2016/05/04/artificial-womb-breakthrough-sparks-row-over-how-long-human-embr/ (accessed January 4, 2017).
7 David Warmflash, ‘Artificial Wombs: The Coming Era of Motherless Births?’, Genetic Literacy Project, June 12, 2015, www.geneticliteracyproject.org/2015/06/12/artificial-wombs-the-coming-era-of-motherless-births/ (accessed January 4, 2017).
8 Judith Jarvis Thomson, ‘A Defense of Abortion’, Philosophy & Public Affairs 1, no. 1 (1971): 47–66.
9 David Teather, ‘Lesbian Couple have Deaf Baby by Choice’, The Guardian, April 8, 2002, https://www.theguardian.com/world/2002/apr/08/davidteather (accessed February 8, 2017).
10 Liz Mundy, ‘A World of Their Own’, The Washington Post, March 15, 2002, https://www.washingtonpost.com/archive/lifestyle/magazine/2002/03/31/a-world-of-their-own/abba2bbf-af01-4b55-912c-85aa46e98c6b/?utm_term=.57a9de1a0cd0 (accessed February 8, 2017).
11 Canadian Charter of Rights and Freedoms, 15(1) Government of Canada Justice Laws Website, http://laws-lois.justice.gc.ca/eng/const/page-15.html (accessed February 4, 2017).
12 Canadian Charter of Rights and Freedoms, 15(2).
13 David Benatar, Better Never To Have Been: The Harm of Coming Into Existence (New York: Oxford University Press, 2006).
14 Wiener, ‘Transgenerational Tort Liability’, 331.
15 This is not Fukuyama’s view but it is inspired by and based on the argument in his book: Francis Fukuyama, Our Posthuman Future: Consequences of the Biotechnology Revolution (New York: Farrar, Straus & Giroux, 2002).
16 Interesting to note, Charles Taylor, in his ‘The Politics of Recognition’ has pushed the limits on human interaction back sufficiently to allow for indirect contact to suffice for development. Taylor still holds onto the idea of human beings as social animals with his argument that selves are formed dialogically, but the dialogical process does not require another person to be physically present, rather they can exist indirectly through memories, objects, or ideas: see Charles Taylor, ‘The Politics of Recognition’, in Philosophical Arguments (Cambridge MA: Harvard University Press, 1995), 225–56.
17 Juan E. Méndez, ‘Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, United Nations Anti-Torture Initiative, August 5, 2011, United Nations General Assembly, Doc. A/66/268, http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf (accessed February 27, 2017).
18 Every case of autism is unique, and my general statements about the autism disorder spectrum should be taken only as an example, not as making a claim about all persons with autism. Not everyone with autism has an above average intelligence, and such intelligence varies (it can be spatial, mathematical, etc.). Further, not all deficits will be distributed equally; some autistic persons will never truly ‘understand’ social relations, but are sufficiently high functioning that they can learn the social conventions and apply them properly, others will be unable to do this or may even be non-verbal.
19 James Gallagher, ‘UK Approves Three-Person Babies’, BBC News, February 24, 2015, www.bbc.com/news/health-31594856 (accessed February 11, 2017).
20 Wiener, ‘Transgenerational Tort Liability’, 325.
21 Wiener, ‘Transgenerational Tort Liability’, 332.
22 Wiener, ‘Transgenerational Tort Liability’, 334.
23 Wiener, ‘Transgenerational Tort Liability’, 332–3.
24 Wiener, ‘Transgenerational Tort Liability’, 323–5.
25 When I say flimsiest of reasons, I refer to two things: (1) The lack of exploration of alternative solutions to a health situation. For example, moderate cases of depression and social anxiety can be treated with talk therapy and stress reduction exercises that would have no side-effects but are instead often treated with pharmaceutical agents because medication is seen as a simpler and easier solution. And (2) pharmaceutical products with serious side effects are commonly taken for, arguably, medically unnecessary reasons. In short, the side-effects including possible epigenetic damage, far outweigh the condition and symptoms the drug is being taken to alleviate. For example, Sporanox (aka Itraconazole), is a drug commonly used to treat toenail fungal infections, a condition which in most cases a person can easily live with. Yet the list of side-effects attributed to Sporanox is long and serious, and includes: light-headedness, headaches, dizziness, nausea, vomiting, upset stomach, constipation, hair loss, fever, muscle aches, joint pain, changes in menstrual periods, impotence, erection problems, ringing in the ears, problems with hearing, fast heartbeats, numbness or tingly feeling, blurred vision, double vision, loss of bladder control, severe pain in the upper stomach spreading to the back, little or no urinating, pain or burning during urination, signs of congestive heart failure--shortness of breath (even with mild exertion), cough with mucus, swelling, rapid weight gain, sleep problems, and liver problems.
26 Wiener, ‘Transgenerational Tort Liability’, 335–6. See Eric Rakowski, ‘Who Should Pay for Bad Genes?’ California Law Review 90, no. 5 (2002): 1345–414.
27 Montreal Tramways Co. v. Léveillé.