Foetal life and a legal duty of care

Abstract

Until 1932 in England the right to sue for injuries caused by the fault of another was not recognised in the absence of contract. The law of negligence has expanded and developed as new facts are presented to the courts of their decision. One of the basic elements of the tort of negligence is proof that the defendant owed a duty of care to the plaintiff. The law with respect to those who suffer injury who are in being has been clearly defined. However, the law has now developed to hold that a child is born with injuries caused by the negligence of another whilst the child was in utero has a right to bring an action for compensation for those injuries provided the child is born alive. A further development in this area of law has been the legal recognition of a claim by a child who suffers injuries in utero caused by a negligent act committed against the mother at a time when the child was not even conceived provided the child can prove a duty of care was owed and that the injuries complained of were caused by the alleged negligent act. Thus midwives and other health professional who care for and advise pregnant women need to keep in mind that a duty of care may be owed to an unborn child or a future unborn child as well as to the pregnant women.