Duty of Care³ The Supreme Court of Canada has held

Duty of Care³ The Supreme Court of Canada has held that a pregnant woman does not owe a duty of care to her unborn child. Consequently, if a pregnant woman carelessly causes a traffic accident that results in damage to her unborn child, that child cannot sue in negligence despite being born later with a disability Interestingly, the same rule does not apply between an unborn child and other people . Anyone, except a mother, can owe a duty of care. For example, if a father carelessly causes a child to suffer an injury before birth, he can be held liable if that child is later born with a dis ability Furthermore, everyone, including a mother, can be held liable for carelessly causing an injury to a child after birth. The rule that denies the existence of a duty of care between a pregnant woman and her unborn child reflects the court’s attempt to strike a balance between the desirability of providing compensation for the injured child and the desirability of protecting the woman’s freedom of action. Because nearly everything that a woman does can affect her unborn child, it has been argued that a duty of care would unfairly require her to be on guard for nine months. 

Questions for Discussion 

1. Has the Supreme Court of Canada struck a fair balance? 

2. From a legal and moral perspective, should a pregnant woman be entitled to carelessly injure her unborn child? When answering those questions , consider that the mother would usually want to be held liable to her injured child. More precisely, she would want her child to be able to recover compensatory damages from her insurance company .