Maternal tort immunity, the born alive rule and the disabled child’s right to legal capacity: reconsidering the Supreme Court of Canada judgment in Dobson v. Dobson

Abstract

ABSTRACTThis paper reconsiders the Supreme Court of Canada (SCC) judgment in Dobson v. Dobson.1 Dobson addressed the issue of whether a born alive child should have a judicially recognised legal right to sue the mother in tort for damages based on her negligence in causing him/her permanent disabilities that originated in prenatal harms. The SCC in Dobson denied the child legal capacity in the aforementioned context relying primarily on purported public policy grounds framed, for the most part, in terms of a pregnant woman’s Canadian Charter rights to liberty and security of the person. A re-examination of just what Canadian Charter values and human rights are at stake in such cases and for whom is a prime focus of the current discussion and analysis. Also addressed is the problem with using the ‘born alive rule’ to contemplate either a ‘continuing tort’ (a foetal rights view) or a ‘tort perfected in law upon the live birth of the child’ perspective in considering whether tort liability should attach for the injuries suffered by the born alive child due to maternal conduct that predated the existence of the child as a legal person under Canadian law.