The Unborn Plaintiff

A pregnant woman is knocked down by a car and injured. Can she recover damages? Certainly -- if the driver was at fault. But what about the unborn child? If he is born with a defect caused by the accident, can he go to court and sue for injuries? Only a few years ago, the answer would have been no. Now, in many courts around the world, the answer would be a highly qualified yes. Writing in the Michigan Law Review, Dr. David A. Gordon, a South African lawyer, notes that the law in most Western nations is finally beginning to recognize the rights of the unborn plaintiff.

Christian Viewpoint. New medical knowledge has led some courts to adopt a stand that the Roman Catholic Church has held for years--that a child is a distinct person with rights of his own as soon as he is conceived. Doctors have now proved even beyond a lawyer's doubts that the fetus is most susceptible to lasting defects from injuries and drugs during the first three months after conception. As a result, juries are now far more able to assess responsibility and fix damages.

Like most legal developments, the rights of the unborn child were not won easily. Under common law in medieval England, an unborn child had no legal rights and no separate identity except in cases of inheritance, abortion, and where the mother was condemned to die. Then the execution was stayed long enough to allow the child to be born. The situation progressed very little until the 1940s when a few U.S. courts began allowing plaintiffs to recover for damages suffered before their birth under the ancient canon that where there is a wrong, there must also be a remedy. These scattered rulings, plus the compelling evidence of modern medical research, started the new trend.

Sue Mother? Now, from the U.S. to Germany, plaintiffs who were born with defects have won scores of cases, ranging from malpractice suits against obstetricians who damaged them at birth to suits against hospitals where they acquired congenital syphilis through blood transfusions administered to their mothers. The greatest body of litigation in this new field lies ahead. Key battleground: the hundreds of suits now being filed throughout Europe against the West German Grunenthal Chemical Co. and its licensees, makers of thalidomide, the sleeping pill-tranquilizer that caused thousands of children to be born with serious defects.

If the unborn plaintiff has such recovery rights against outsiders, the next obvious question is its legal position to its mother. As yet, the issue has not been tested. But some lawyers feel that if a child can prove that its mother negligently exposed it to a defect-causing disease, there is no reason why the child cannot sue its own mother--and collect.

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