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ABSTRACT
In its recent decision in Carter v Canada (Attorney General), the Supreme Court of Canada clarified when it is appropriate for courts to reconsider Supreme Court precedent. Accordingly, the Court concluded that a fundamental shift or change in international legal standards that differs from the approach adopted in the original Supreme Court decision is a ground for reviewing previous decisions. In 1999, the Supreme Court concluded that a maternal tort liability does not exist in Canadian common law. This paper will parse whether Canada’s approach to maternal tort liability still accords with international legal standards or whether it is time that the issue should be reconsidered by the courts.
Acknowledgements
The author would like to thank her research student, Holly O’Neill, for her assistance with this project and Dr Sonja Grover for her comments on the paper.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Mariette Brennan is an associate law professor at the Bora Laskin Faculty of Law, Lakehead University. She received her PhD from Osgoode Hall Law School in 2012 following her Master of Laws at the University of Essex and a Juris Doctor degree from the University of Ottawa in 2003. Her research interests focus on international human rights and health law.
Notes
1 Karen M. Weiler and Katherine Catton, ‘The Unborn Child in Canadian Law’, Osgoode Hall Law Journal 14, no. 3 (1976): 643–60.
2 In Canada, despite attempts to change the law, there is no criminal liability for harming a foetus. Currently, if a person harms a foetus, he or she can be charged for a crime but only in regards to the mother that would have also been harmed. For instance, if a foetus dies because an individual assaulted the mother, he or she would be charged with an offence for assaulting the mother but not a separate offence for harming the foetus. See Protection of Pregnant Women and Their Preborn Children Act (Cassie and Molly’s Law) (2016) (Bill C-225).
3 [1999] 2 SCR 753 [hereinafter Dobson].
4 In its 2015 decision in Carter v Canada Attorney General, 2015 S.C.C. 5, the Supreme Court of Canada reconsidered its decision in Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519 and the criminal law prohibition on physician assisted suicide. As part of its judgment in Carter, the Supreme Court discussed when a Canadian court of law might reconsider previous decisions. It was concluded that there are two situations when it is appropriate to revisit previous cases: when a new legal issue is raised or there is new evidence that fundamentally changes the debate on the issue. This latter category can involve an examination of how the legal issues have changed internationally and if there is enough of a change in international opinion, a previous decision of the Supreme Court may be appropriately reconsidered. There are two primary ways in which a Court could be asked to review the Supreme Court’s Dobson decision. The first (which is also the most likely way such a review would commence) would be through the initiation of another lawsuit. In this scenario, a child (who was injured while en ventre sa mere) would seek to recover damages from his/her mother for the harm. The Court would then have to determine whether it should follow the Supreme Court precedent in Dobson or, for reasons discussed in Carter, deviate from this precedent. The second manner the issue could return to the courts is if a government asked the court to review the issue (a reference question to the court). Reference questions are typically limited to areas of significant controversy and where there is uncertainty in the law. Given the Supreme Court’s clear precedent in Dobson, it is unlikely that this case would be considered controversial or uncertain.
5 See generally, Rosamund Scott, ‘Maternal Duties to the Unborn? Soundings from the Law of Torts’, Medical Law Review 8 (2000): 34–6.
6 Linda Farber, ‘Bioethical Consideration of Maternal-Fetal Issues’, Fordham Urban Law Journal 24 (1996–97): 757–76; Benjamin Grant Chojnacki, ‘Pushing Back: Protecting Maternal Autonomy from the Living Room to the Delivery Room’, Journal of Law and Health 23, no. 1 (2010): 45–81; Roxanne Mykitiuk and Dayna Nadine Scott, ‘Risky Pregnancy: Liability, Blame, and Insurance in the Governance of Prenatal Harm’, University of British Columbia Law Review 43 (2010–11): 311–60.
7 In the dissent in Dobson, it was argued that maternal tort liability does not in fact create a conflict of interest between foetal rights and maternal rights. As the dissent argues, the right to recover for damages in maternal tort liability belongs to the born alive child for on going post-natal injuries that arose from pre-natal events; the right does not belong to the foetus. If this approach is followed it is the rights of the born alive child (a separate and distinct legal person) that is in conflict with the mother. See Dobson, paras 102–5.
8 Detailed facts about the case and car accident can be found in Dobson v Dobson, 2000 CanLii 3598 (NB QB). This case centres on whether the driver of the car Cynthia Dobson crashed into could be held liable for part of the accident.
9 Deziel v Deziel [1953] 1 DLR 651. This is in direct contrast to the parental immunity doctrine developed in the United States.
10 Montreal Tramways Co. v. Léveillé, [1933] SCR 456. In Dobson, Miller J recognised the well-established common law precedent that legal personality begins at birth and ends at death. See generally Tremblay v. Daigle, [1989] 2 SCR 530 which recognises a right of a foetus to sue for harm caused by a third person; the legal personality of the foetus was debated in the case. Miller J believed in the natural progression of tort law, see Dobson (litigation guardian of) v Dobson (1997), 186 N.B.R. 2(d) 81 at 88.
11 Dobson (litigation guardian of) v Dobson (1997), 186 NBR 2(d) 81 as cited in Dobson (litigation guardian of) v Dobson, 148 DLR (4th) 332 at 334.
12 Dobson (litigation guardian of) v Dobson, 148 DLR (4th) 332.
13 Ibid., 332.
14 The Supreme Court has affirmed this general proposition. In Winnipeg Child and Family Services (Northwest Area) v DFG [1997] 3 SCR 925, the Supreme Court had to consider whether the Court, pursuant to either tort law or its parens patriae jurisdiction could detain a pregnant woman suffering from addiction issues in order to protect her unborn child. In making its decision, the Court relied on ‘the general proposition that the law of Canada does not recognize the unborn child as a legal or juridical person. Once a child is born, alive and viable, the law may recognize that its existence began before birth for certain limited purposes. But the only right recognized is that of the born person. This is a general proposition, applicable to all aspects of the law, including the law of torts’: Winnipeg Child, para 11.
15 For instance, a child can sue a doctor for harms that were cause to him/her while in utero if the doctor provided negligent care to the mother. The Supreme Court of Canada has recognised the idea of liability for pre-natal injuries against third parties. See for instance, Tremblay v. Daigle.
16 It was a split decision with a majority judgment allowing the appeal, a concurring judgment allowing the appeal and a dissent upholding the decision of the New Brunswick Court of Appeal.
17 Mykitiuk and Scott, ‘Risky Pregnancy’, 333. Dobson, paras 76–81.
18 Dobson, paras 77–8.
19 A failure to create an adequate comparator standard would be fatal to any negligence claim. For a discussion of this argument see Dobson, paras 52–5.
20 Dobson, para 128 (dissent).
21 Rewega v Rewega, 2005 A.B.C.A. 365. Lisa Rewega gave birth to her daughter Brooklyn in April 2001. At birth, Brooklyn was born with severe cerebral palsy among other injuries; these injuries were the result of the prenatal harm she had suffered when her mother was in the car accident. CBC News, ‘Legislation to Allow Girl to Sue Her Mother Put On Hold’, CBC/Radio-Canada (April 27, 2004) www.cbc.ca/news/canada/edmonton/legislation-to-allow-girl-to-sue-mother-put-on-hold-1.471284 (accessed August 15, 2016).
22 Rewega, paras 1–12.
23 CBC News, ‘Legislation to Allow Girl to Sue’.
24 Legislative Assembly of Alberta, Maternal Tort Liability Act, 26th Legislature, 1st sess., S.A. 2005, c M-7.5. Not only is the civil cause of action limited to motor vehicle accidents, it is further limited by only applying in accidents where the negligent mother has insurance that would cover the cost of any potential legal recovery.
25 Legislative Assembly of Alberta, Brooklynn Hannah George Rewega Right of Civil Action Act, 26th Legislature, 1st sess., S.A. 2005, c 51.
26 CBC News, ‘Alberta Family Wins Landmark Settlement for Injuries to Fetus’, CBC/Radio-Canada (December 22, 2006) www.cbc.ca/news/canada/edmonton/alberta-family-wins-landmark-settlement-for-injuries-to-fetus-1.599000 (accessed August 22, 2016).
27 See for instance, Hall (Litigation Guardian of) v Kellar (2002), 23 CCLT (3d) 40 (Ont. Sup. Ct. J.).
28 According to Supreme Court precedent, Canadian law should be interpreted to comply with Canada’s international legal obligations unless the legislation specifically states that it should not. International norms are also used by the Court to interpret and inform the content of rights protected by domestic laws: R v Hape [2007] 2 SCR 292. See generally, Benjamin Oliphant, ‘Interpreting the Charter with International Law: Pitfalls & Principles’, Appeal 19 (2014): 105–30.
29 There are several other United Nations treaties that contain provisions that may be used to support the creation of a distinct tort for maternal liability; including the International Convention on Civil and Political Rights. For a discussion of how the ICCPR can be used to support the creation of a such a tort see Sonja Grover, ‘Generalizing the Mother’s Property Interest in the Fetus to the Live Child after Birth: Implications for Children’s Fundamental Human Rights’, Original Law Review 3, no. 2 (2007): 48–56.
30 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.
31 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13.
32 UNICEF Canada, ‘About the Convention on the Rights of the Child’, UNICEF Canada, www.unicef.ca (accessed July 15, 2016).
33 See also Charlotte Bates, ‘Abortion and a Right to Health in International Law: L.C. v Peru’, Cambridge Journal of International and Comparative Law 2, no. 3 (2013): 650.
34 See generally, John I. Fleming and Michael G. Hains, ‘What Rights, If Any, Do the Unborn Have Under International Law?’, Australian Bar Review 16 (1997): 181–98; United Nations, Office of the High Commissioner, ‘Status of Ratification, Reservations and Declarations for the Convention on the Rights of the Child’ OHCHR, http://indicators.ohchr.org (accessed July 2, 2016).
35 Bates, ‘Abortion and a Right to Health’, 650. See also Committee on the Rights of the Child, ‘General Comment 4: Adolescent Health’ UN Doc CRC/GC/2003/4 1 July 2003 at para 31; Committee on the Rights of the Child, ‘Concluding Observation on Guatemala’ UN Doc CRC/C/15/Add.154 (July 9, 2001) at para 40.
36 United Nations Entity for Gender Equality and the Empowerment of Women, ‘Convention on the Elimination of All Forms of Discrimination against Women’, www.un.org/womenwatch/daw/cedaw/cedaw.htm (accessed August 5, 2016).
37 C/50/D/22/2009 (4 November 2011) (CEDAW) at para 2.1.
38 Ibid., para 7.7. See also Bates, ‘Abortion and a Right to Health’, 652.
39 Center for Reproductive Rights ‘Whose Right to Life? Women’s Rights and Prenatal Protections under Human Rights and Comparative Law’ (2014), 7, www.reproductiverights.org/sites/crr.civicactions.net/files/documents/RTL_Updated_8.18.14.pdf (accessed July 25, 2016).
40 Vo v France [2004] ECHR 326. While the Court has considered a significant amount of cases centring around abortion issues, Vo was a different scenario and dealt with the death of Vo’s foetus as a result of negligent medical care. After hospital staff injured her foetus, she was forced to undergo a therapeutic abortion. Vo wanted the negligent doctor charged with involuntary homicide of her foetus; France refused to prosecute. Vo then took France to the European Court of Human Rights claiming that their failure to prosecute the negligent doctor violated her foetus’s right life. See additionally, Douwe Korff, ‘The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights’ Council of Europe, Human Rights Handbooks, No. 8 (2006) at 13.
41 The European Court of Human Rights has used other sections of the European Convention to conclude that, in certain circumstances, state protection of foetal rights is legitimate and can fit into the European human rights system. For a discussion of the evolution of these cases, see Sonia Harris-Short, ‘An Identity Crisis in the International Law of Human Rights: The Challenge of Reproductive Cloning’, International Journal of Children’s Rights 11: (2003–04): 356–8.
42 Organization of American States (OAS), American Convention on Human Rights, ‘Pact of San Jose’, Costa Rica, 22 November 1969.
43 Artavia Murillo et al. v Costa Rica, (Preliminary Objections, Merits, Reparations, and Costs), Judgment, Inter-Am. Ct. H.R. (set C) No. 257 (Nov. 28, 2012). This case dealt with Costa Rica’s ban on in vitro fertilisation. See generally, Ligia M. De Jesus, ‘The Inter-American Court on Human Rights’ Judgment in Artavia Murillo v. Costa Rica and Its Implications for the Creation of Abortion Rights in the Inter-American System of Human Rights’, Oregon Review of International Law 16 (2015): 225–48.
44 Artavia Murillo v. Costa Rica, para 256; see also De Jesus, ‘The Inter-American Court on Human Rights’ Judgment’, 227.
45 There has yet to be a case on point at the Inter-American Court of Human Rights, however, the Court has addressed other issues of foetal rights including in vitro fertilisation, abortion, etc. Moreover, the Inter-American Commission has yet to completely define the applicability of foetal rights in the Inter-American system: see Alvaro Paul, ‘Controversial Conceptions: The Unborn and The American Convention on Human Rights’, Loyola University Chicago International Law Review 9 (2012): 209–48.
46 Lynch v Lynch (1991), 25 NSWLR 411.
47 Fiona Forsyth, ‘Lynch v Lynch and Anor’, Melbourne University Law Review 18, no. 4 (1992): 950–6.
48 Forsyth, ‘Lynch v Lynch and Anor’, 950.
49 Forsyth, ‘Lynch v Lynch and Anor’, 951.
50 Watt v Rama [1972] VR 353; X & Y v Pal (1991), 23 NSWLR 26. See generally, Forsyth, ‘Lynch v Lynch and Anor’, 951.
51 Hahn v Conley (1971) 126 C.L.R. 276 at 283.
52 Lynch v Lynch; see also Forsyth, ‘Lynch v Lynch and Anor’, 47.
53 Lynch v Lynch, 415.
54 Bowditch v McEwan & Others [2002] QCA 172.
55 Bowditch v McEwan & Others [2002], para 1.
56 Ibid. See generally Bowditch v McEwan & Ors [2001] Q.S.C. 448 (95/1008).
57 Bowditch v McEwan & Others [2002], para 4.
58 Ibid., para 11.
59 Kate Wellington, ‘Maternal Liability for Prenatal Injury: The Preferable Approach for Australian Law?’, Tort Law Review 18 (2010): 90.
60 United Kingdom, ‘Law Commission Report on Injuries to Unborn Children’ Law Commission Report No 60 (Cmnd 5709 1974). For a general discussion on the Law Commission and the legislation, please see Adrian Whitfield, ‘Common Law Duties to Unborn Children’, Medical Law Review 1 (1993): 28–52.
61 This Act imposes liability on third party individuals (i.e. the non-pregnant woman) for harm caused to the foetus. The liability only arises if the harm/injury causes damage to the born alive child.
62 Jane E.S. Fortin, ‘Legal Protection for the Unborn Child’, The Modern Law Review 51 (1988): 77–8. It was also argued insurance would likely cover the costs associated with any monetary award recovered from the mother in negligent driving cases and therefore the mother would not necessarily be penalised.
63 [2014] EWCA Civ 1554 [hereinafter CP].
64 The Criminal Injuries Compensation Scheme (UK) 2008, ss 6–8. Enacted pursuant to the Criminal Injuries Compensation Act 1995 (UK).
65 CP, para 1. At the time, this case was serving as a test case for CICA; there were over 80 other claims for compensation arising from foetal alcohol syndrome that were going to be resolved depending on the outcome of the case: CP, para 3.
66 Criminal Injuries Compensation Scheme (UK) 2008, para 10; see also, CP, para 10.
67 The girl, now age nine, suffered from severe brain damage at birth. This damage has resulted in numerous complications including, learning, memory, behavioural and developmental problems: BBC, ‘Foetal Alcohol Syndrome Case Dismissed by Court of Appeal’ BBC News, December 4, 2014, www.bbc.com/news/uk-30327893 (accessed 5 August 2016).
68 CP, para 5.
69 By all accounts the mother suffered from alcoholism and did consume excessive amounts of alcohol whilst pregnant. According to evidence presented at the Court, the mother consumed approximately eight cans of strong beer and a half a bottle of vodka each day of her pregnancy: see BBC, ‘Foetal Alcohol Syndrome Case Dismissed’.
70 CP, para 14.
71 CP, para 14.
72 CP, para 15.
73 CP, para 44. Counsel for CP tried to argue that the harm and injuries to CP occurred not only whilst she was en ventre but also after birth. The Court ultimately ruled that while the effects of Foetal Alcohol Syndrome may only become prevalent years after the birth, the injury was caused by behaviour that occurred while the child was en ventre. This case was compared to victims of Thalidomide, the injuries last the entire life of the born alive child but the act that caused the injuries occurs during the short time of pregnancy. As a result, the question only centres on whether the foetus is considered other persons (if the harmful behaviour continued after the birth, the child would be able to recover compensation for the post-birth injury). CP, para 45.
74 CP, para 67.
75 Hewellette v George 9 So. 885 (Miss. 1891), overruled by Glaskos v Glaskox 614 So. 2d 906 (Miss. 1992); McKelvey v McKelvey 77 S.W. 664 (Tenn. 1903), overruled by Broadwell v Holmes, 871 S.W. 2d 471 (Tenn. 1994); and Roller v Roller 79 P 788.
76 Matthew Robinson-Loffler, ‘Passive Parenting and New York’s Refusal to Recognize Parent-Child Actions for Negligent Supervision’, Albany Government Law Review 5 (2012): 862 (original footnotes omitted).
77 125 Ill. 2d 267, 531 N.E. 2d 355 (1988).
78 Ibid. See also Tort Law: Prenatal Injuries. Supreme Court of Illinois Refuses to Recognize Cause of Action Brought by Fetus against Its Mother for Unintentional Infliction of Prenatal Injuries. Stallman v. Youngquist, 125 Ill. 2d 267, 531 N.E. 2d 355 (1988), Harvard Law Review 103, no. 3 (1990): 823.
79 Grodin v Grodin, 301 NW 2d 869; 102 Mich. App. 396 (Mich. Ct. App. 1980) (cited to Mich. App.).
80 Grodin v Grodin.
81 Grodin v Grodin, 398. See also Rebecca Caldwell, ‘Kilmon v State: A Missed Opportunity to Advance Women’s Rights’, Maryland Law Review 66 (2006–07): 987.
82 Grodin v Grodin, 398. See also Caldwell, ‘Kilmon v State: A Missed Opportunity’, 987.
83 Grodin v Grodin, 402.
84 Bonte v Bonte 136 N.H. 286 (1992).
85 Bonte v Bonte .
86 Bonte v Bonte .
87 Bonte v Bonte, paras 3, 4. The Court relied on the precedent case of Bennett v Hymers, 101 N.H. 483 at 486 (1958) which allowed a born alive child to sue third parties for tortious conflict resulting in injuries to the born alive child. The Court, in Bonte, emphasised that the precedent ‘did not limit those against whom the child may bring suit for injuries sustained while in utero, and … recognized that the injuries suffered by the child while in the womb are “distinct and independent” from any injuries suffered by the mother’. This allowed the Court to conclude that the born alive child could sustain a cause of action against his/her mother for injuries sustained in utero: Bonte v Bonte, paras 3, 4.
88 Bonte v Bonte, para 6.
89 Ibid.
90 Ibid.
91 Under the guise of protecting the foetus, women have been subject to unwanted blood transfusions, surgery, C-sections, and forced drug treatment. Moreover, employment laws limit pregnant women’s ability to deal with certain types of chemicals and other products. For more information, see Ross Hyams, ‘Who Gets To Choose? Responses to the Foetal/Maternal Conflict’, Murdoch University Electronic Journal of Law 2, no. 3 (1995): article no. 32; Matthew F. Weil, ‘Protecting Fetuses from Workplace Hazards: Johnson Controls Narrows the Options’, Berkeley Journal of Employment and Labor Law 14 (1993): 142–78; V. Chandis, ‘The Patient, the Doctor, the Fetus, and the Court-Compelled Cesarean: Why Courts Should Address the Question through a Bioethical Lens’, Medicine and the Law 25, no. 4 (2006): 729–46; Jennifer Henrick, ‘What to Expect When You’re Expecting: Fetal Protection Laws that Strip Away the Constitutional Rights of Pregnant Woman’, Boston College Journal of Law and Social Justice 35, no. 1 (2015): 117–52.
92 Brian A Wamble, ‘Parental Immunity: Tennessee Joins the National Trends towards Modification’, University of Memphis Law Review 25 (1994–95): 239; Kristen Rabe Smolenski, ‘Creating Children with Disabilities: Parental Tort Liability for PreImplantation Genetic Interventions’, Hastings Law Journal 60 (2008–09): 316.
93 Linda C. Fentiman, ‘The New Fetal Protection: The Wrong Answer to the Crisis of Inadequate Health Care for Women and Children’, Denver University Law Review 84 (2006–07): 537. See also Julia L. Ernst, Laura Katzive, and Erica Smock, ‘The Global Pattern of U.S. Initiative Curtailing Women’s Reproductive Rights: A Perspective on the Increasingly Anti-Choice Mosaic’, University of Pennsylvania Journal of Constitutional Law (2004): 752–95.
94 Diana Ginn, ‘A Balancing that is Beyond the Scope of the Common Law: A Discussion of the Issues Raised by Dobson (Litigation Guardian of) v. Dobson’ Queen’s Law Journal 27(1) (2001): 51; Grover, ‘Generalizing the Mother’s Property Interest’; Ian Kerr, ‘Pre-Natal Fictions and Post-Partum Actions’, Dalhousie Law Journal 20, no. 1 (1997): 237–74.