Dobson (Litigation Guardian of) v. Dobson

Dobson (Litigation Guardian of) v. Dobson
Collection
Supreme Court Judgments
Date
1999-07-09
Report
[1999] 2 SCR 753
Case number
26152
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
New Brunswick
Subjects
Torts
Notes
SCC Case Information: 26152
Decision Content
Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753
Cynthia Dobson Appellant
v.
Ryan Leigh MacLean Dobson by his
Litigation Guardian, Gerald M. Price Respondent
and
The Canadian Abortion Rights Action League,
the Evangelical Fellowship of Canada and
the Catholic Group for Health, Justice and Life Interveners
Indexed as: Dobson (Litigation Guardian of) v. Dobson
File No.: 26152.
1998: December 8; 1999: July 9.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for new brunswick
Torts -- Negligence -- Motor vehicle accident -- Action by child for prenatal negligence against mother -- Whether mother liable in tort for damages to her child arising from an alleged prenatal negligent act which injured her foetus.
The appellant was 27 weeks pregnant when the vehicle she was driving collided with another resulting in prenatal injuries to her foetus which resulted in his birth by Caesarian section later that day. These prenatal injuries caused permanent mental and physical impairment. The child brought an action for damages against his mother alleging that the collision was caused by her negligent driving. The motion judge found that the respondent had the legal capacity to sue for injuries caused by the appellant’s alleged prenatal negligence. The Court of Appeal dismissed the appeal from that decision. At issue here is whether a mother should be liable in tort for damages to her child arising from a prenatal negligent act which allegedly injured her foetus.
Held (Major and Bastarache JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, Iacobucci and Binnie JJ.: The judicial recognition of a legal duty of care owed by a pregnant woman towards her foetus or subsequently born child requires that the two‑step test articulated in Kamloops be satisfied -- (1) establishment of a relationship sufficient to establish a duty of care, and (2) existence of no public policy considerations negating this duty of care. The conclusion reached with respect to the second branch of that test determines the outcome of this appeal. The public policy concerns raised in this case are of such a nature and magnitude that they clearly indicate that a legal duty of care cannot, and should not, be imposed by the courts upon a pregnant woman towards her foetus or subsequently born child. However, unlike the courts, the legislature may enact legislation in this field, subject to the limits imposed by the Canadian Charter of Rights and Freedoms .
In light of the very demanding biological reality that only women can become pregnant and bear children, the courts should be hesitant to impose additional burdens upon pregnant women. In addition, the relationship between an expectant woman and her foetus is truly unique. Accordingly, there can be no meaningful analogy between a child’s action for prenatal negligence against a third-party tortfeasor, on the one hand, and against his or her mother, on the other.
The actions of a pregnant woman, including driving, are inextricably linked to her familial role, her working life, and her rights of privacy, bodily integrity and autonomous decision‑making. Moreover, the judicial recognition of this cause of action would involve severe psychological consequences for the relationship between mother and child, as well as the family unit as a whole. The imposition of tort liability in this context would have profound effects upon every pregnant woman and upon Canadian society in general. Such after‑the‑fact judicial scrutiny of the subtle and complicated factors affecting a woman’s pregnancy may make life for women who are pregnant or who are merely contemplating pregnancy intolerable. The best course, therefore, is to allow the duty of a mother to her foetus to remain a moral obligation which, for the vast majority of women, is already freely recognized and respected without compulsion by law.
There is as well a need for judicial restraint in the development of tort law as it pertains to sensitive and far-reaching issues of public policy. The imposition of a legal duty of care upon a pregnant woman towards her foetus or subsequently born child cannot be characterized as the simple application of existing tort rules to meet the requirements of a specific case. Rather, it constitutes a severe intrusion into the lives of pregnant women, with potentially damaging effects on the family unit.
Moreover, there can be no satisfactory judicial articulation of a standard of conduct for pregnant women. A rule based on a “reasonable pregnant woman” standard raises the spectre of tort liability for lifestyle choices, and undermines the privacy and autonomy rights of women. A compromise judicial solution, based on the murky distinction between “lifestyle choices peculiar to parenthood” and a “general duty of care” owed to third parties, is simply too vague to be manageable, and will inevitably lead to inequitable and uncertain results.
Finally, a rule based on a strictly defined motor vehicle exception to delineate the scope of maternal tort liability should not be created by the judiciary. To do so would be to sanction a legal solution based solely on access to insurance. If this approach were to be adopted, the provincial legislatures would be required to amend their legislative compensation regimes for motor vehicle accidents. Any such amendment might well be required to specify that it constituted an exception to the general rule of maternal tort immunity for prenatal negligence, and that the injured child could not recover damages above the limit established by the insurance scheme. A carefully tailored solution could benefit both the injured child and his or her family, without unduly restricting the privacy and autonomy rights of women.
Per L’Heureux-Dubé and McLachlin JJ.: The common law must reflect the values reflected in the Canadian Charter of Rights and Freedoms . Applying common law liability for negligence generally to pregnant women in relation to the unborn trenches unacceptably on the liberty and equality Charter interests of pregnant women. The intrusion on the autonomy of the pregnant woman by common law tort liability cannot be reduced to the point where the infringement on a woman’s liberty and equality interests is acceptable without distorting its methodology and introducing new difficulties. The proposal that only children “born alive” can sue leaves a vast scope for curtailment of the pregnant woman’s autonomy. The proposal that liability follows only where the mother is insured against the damage flies in the face of the maxim that tort liability cannot be predicated on the defendant’s means. The precept that a common law duty of care arises from the relationship between the parties is violated by the proposal that liability should be restricted to where a pregnant women owes “general” duty to hypothetical people or by its variant that duty is owed to actual third parties.
Per Major and Bastarache JJ. (dissenting): The appellant mother owed a duty of care to other users of the highway, to passengers in her car and to her foreseeably injured born alive child. No intrusion into a pregnant woman’s freedom of action can be demonstrated where a duty of care is owed to a third party in respect of the very same behaviour of which the child complains. The pregnant woman’s freedom of action is not in issue in this appeal. This bright-line test easily distinguishes situations in which the pregnant woman’s freedom of action is in issue from those where it is not. Tort law is well equipped to distinguish between the two.
The bare assertion of social policy concerns expressly and unilaterally centred on a pregnant woman’s rights is not a sufficient answer to determine whether a pregnant woman’s rights should prevail over the equally recognized rights of her born alive child. While the law may grant immunity from liability based on policy reasons, those reasons, which must be clear and compelling, are conspicuously absent here. The removal of the child’s cause of action is extreme and the policy reasons for doing so should be obvious and persuasive. No jurisprudence was advanced that would negate a pregnant woman’s legal responsibility for negligent acts against her born alive child where the effects of those acts are reasonably foreseeable and where they violate the physical integrity of a legal person. The special relationship between a pregnant woman and her foetus is significant for both the mother-defendant and the born alive child-plaintiff and the legal or social policy implications to be drawn from this biological fact cannot be ascertained in the absence of equal acknowledgment of the rights of the child. To grant a pregnant woman immunity from the reasonably foreseeable consequences of her acts for her born alive child would create a legal distortion as no other plaintiff carries such a one-sided burden, nor any defendant such an advantage.
Policy considerations flowing from concerns about the appropriateness of intra-familial litigation may be sufficient to negate any child’s right to sue his or her parents in tort. The conclusion that such concerns only bar tort action brought by born alive children who sustained injuries while still in utero is not justified.
Cases Cited
By Cory J.
Applied: City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; considered: Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; R. v. Sullivan, [1991] 1 S.C.R. 489; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; Bonte v. Bonte, 616 A.2d 464 (1992); Duval v. Seguin, [1972] 2 O.R. 686, aff’d (1973), 1 O.R. (2d) 482; Stallman v. Youngquist, 531 N.E.2d 355 (1988); Lynch v. Lynch (1991), 25 N.S.W.L.R. 411; referred to: Tremblay v. Daigle, [1989] 2 S.C.R. 530; Deziel v. Deziel, [1953] 1 D.L.R. 651; Donoghue v. Stevenson, [1932] A.C. 562; Hartman by Hartman v. Hartman, 821 S.W.2d 852 (1991); Hogan v. Hogan, 435 N.E.2d 770 (1982); Eisele v. Tenuta, 404 N.E.2d 349 (1980); Johnson v. Myers, 277 N.E.2d 778 (1972); Black v. Solmitz, 409 A.2d 634 (1979); Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092; Lister v. Romford Ice & Cold Storage Co., [1957] 1 All E.R. 125.
By McLachlin J.
Referred to: R. v. Morgentaler, [1988] 1 S.C.R. 30; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.
By Major J. (dissenting)
Deziel v. Deziel, [1953] 1 D.L.R. 651; Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456; Duval v. Seguin, [1972] 2 O.R. 686, aff`d (1973), 1 O.R. (2d) 482; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; Anns v. Merton London Borough Council, [1978] A.C. 728; City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; R. v. Morgentaler, [1988] 1 S.C.R. 30; Tremblay v. Daigle, [1989] 2 S.C.R. 530.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 15(1) .
Congenital Disabilities (Civil Liability) Act 1976 (U.K.), 1976, c. 28, s. 1(1).
Authors Cited
Canada. Royal Commission on New Reproductive Technologies. Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies, vol. 2. Ottawa: The Commission, 1993.
Canada. Statistics Canada. Catalogue No. 82‑003, Health Reports, vol. 7, No. 2, 1995.
Canadian Institute for Health Information. National Trauma Registry Report -‑ Hospital Injury Admissions, 1995/96. Ottawa: The Institute, 1998.
Fleming, John G. The Law of Torts, 8th ed. Sydney: Law Book Co., 1992.
Kerr, Ian R. “Pre‑Natal Fictions and Post‑Partum Actions” (1997), 20 Dalhousie L.J. 237.
Santello, Deborah M. “Maternal Tort Liability for Prenatal Injuries” (1988), 22 Suffolk U. L. Rev. 747.
Steinbock, Bonnie. Life Before Birth: The Moral and Legal Status of Embryos and Fetuses. New York: Oxford University Press, 1992.
United Kingdom. Law Commission. Law Com. No. 60. “Report on Injuries to Unborn Children” Cmnd. 5709, in Law Commission Reports, vol. 5. Oxfordshire: Professional Books, 1979.
United Kingdom. Parliamentary Debates, 5th ser., vol. 904, col. 1589 (6 February 1976).
APPEAL from a judgment of the New Brunswick Court of Appeal (1997), 148 D.L.R. (4th) 332, 189 N.B.R. (2d) 208, 482 A.P.R. 208, 37 C.C.L.T. (2d) 103, 12 C.P.C. (4th) 191, [1997] N.B.J. No. 232 (QL), affirming a decision of the Court of Queen’s Bench (1997), 143 D.L.R. (4th) 189, 186 N.B.R. (2d) 81, 476 A.P.R. 81, [1997] N.B.J. No. 17 (QL), that the infant respondent had the legal capacity to sue his mother for the injuries allegedly caused by his prenatal injuries. Appeal allowed, Major and Bastarache JJ. dissenting.
Robert L. Barnes, Q.C., and Colleen P. Keyes, for the appellant.
M. Ann MacAulay and James W. A. MacAulay, for the respondent.
Beth Symes and Andrea York, for the intervener the Canadian Abortion Rights Action League.
David M. Brown, for the intervener the Evangelical Fellowship of Canada.
William J. Sammon, for the intervener the Catholic Group for Health, Justice and Life.
The judgment of Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, Iacobucci and Binnie JJ. was delivered by
//Cory J.//
Cory J. ‑‑
I. Introduction
1 Pregnancy speaks of the mystery of birth and life; of the continuation and renewal of the species. The relationship between a pregnant woman and her foetus is unique and innately recognized as one of great and special importance to society. In the vast majority of cases, the expectant woman makes every effort to ensure the good health and welfare of her future child. In addition, the sacrifices made by the mother for her newborn child are considerable. Yet, what if hopes for the future are dashed by an injury caused to the foetus as a result of a prenatal negligent act of the mother‑to‑be? Should a mother be held liable for the damages occasioned to her born alive child? That is the question to be resolved in this appeal.
II. Facts
2 On March 14, 1993, the appellant was in the 27th week of her pregnancy. On that day, she was driving towards Moncton in a snowstorm. She lost control of her vehicle on a patch of slush and struck an oncoming vehicle. It is alleged that the accident was caused by her negligent driving. The infant respondent, Ryan Dobson, was allegedly injured while in utero, and was delivered prematurely by Caesarean section later that same day. He suffers from permanent mental and physical impairment, including cerebral palsy.
3 The infant respondent, by his grandfather and litigation guardian, launched a tort claim against, inter alia, the appellant for the damages he sustained. The respondent’s father was the owner of the vehicle driven by the appellant. As required by provincial law, he was insured against damages caused by the negligence of drivers of his motor vehicle.
4 The issues of liability and quantum of damages were severed by a consent order dated June 25, 1996. Thus, the only question to be determined is whether Ryan Dobson has the legal capacity to bring a tort action against his mother for her allegedly negligent act which occurred while he was in utero. Miller J., on an application for determination of this question of law, found that the infant respondent had the legal capacity to sue for injuries caused by the appellant’s prenatal negligence. The Court of Appeal dismissed the appeal from that decision.
III. Judicial History
A. New Brunswick Court of Queen’s Bench (1997), 186 N.B.R. (2d) 81
5 Miller J. recognized the difficulty of reconciling competing legal principles regarding the nature and extent of foetal rights. He accepted that legal personality begins at birth and ends at death: Tremblay v. Daigle, [1989] 2 S.C.R. 530. Therefore, at the time of the commission of the tort, the infant respondent did not exist as a person in law.
6 Miller J. based his decision on two principles of tort law. First, there is no common law bar to actions in tort by children against their parents: Deziel v. Deziel, [1953] 1 D.L.R. 651. The doctrine of parental tort immunity, which exists in certain American jurisdictions, has never been a part of Canadian law. Second, Canadian courts have recognized the juridical personality of the foetus as a fiction which is utilized, at least in certain contexts, to protect future interests. Although a foetus is not a legal person, certain rights accrue and may be asserted by the infant upon being born alive and viable: Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456. In this case, the injury was allegedly suffered by the foetus, but the damages sued for are those sustained by the infant Ryan after his birth. Accordingly, if the damages had been caused by the negligence of some third-party, the infant respondent would be entitled to seek compensation in a tort action.
7 Miller J. concluded that “if an action can be sustained by a child against a parent, and if an action can be sustained against a stranger for injuries suffered by a child before birth, then it seems to me a reasonable progression to allow an action by a child against his mother for prenatal injuries caused by her negligence” (p. 88). He therefore held that the infant respondent had the legal capacity to sue his mother for the injuries allegedly caused by her prenatal negligence.
B. New Brunswick Court of Appeal (1997), 189 N.B.R. (2d) 208
8 Hoyt C.J.N.B. also accepted that, at the time of the accident, the infant respondent did not possess juridical personality. He noted that it was common ground between the parties that a child may sue his or her parents in tort, and that a child may sue a third-party for prenatal negligence. Moreover, he found that there was a real distinction between an action brought by or on behalf of a foetus and one brought by or on behalf of a child. Accordingly, Canadian decisions involving the former ‑- Tremblay v. Daigle, supra; R. v. Sullivan, [1991] 1 S.C.R. 489; and Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925 ‑- had no application to the case before him.
9 Hoyt C.J.N.B. further found that different considerations would arise if this case involved damages resulting from lifestyle choices made by a woman during pregnancy, such as smoking, drinking and the taking of or refusal to take medication. Although cases alleging such negligent conduct by a pregnant woman would raise difficult policy decisions, those issues do not arise in this case. Hoyt C.J.N.B. found that the narrow issue to be resolved concerns the allegedly negligent driving of a pregnant woman resulting in injuries to her born alive child, and not injuries occasioned as a result of her lifestyle choices. Hoyt C.J.N.B. found support for this distinction in Bonte v. Bonte, 616 A.2d 464 (N.H. 1992), Lynch v. Lynch (1991), 25 N.S.W.L.R. 411, and J. G. Fleming, The Law of Torts (8th ed. 1992), at p. 168. He observed that, in Lynch, supra, Clarke J.A. stated that different policy considerations arise in the context of a claim based on negligent driving as opposed to a case involving a pregnant woman’s lifestyle choices.
10 Hoyt C.J.N.B. concluded that the duty on the appellant in this case arose from her general duty to drive carefully and could not be characterized as a lifestyle choice which is “peculiar to parenthood” (p. 216). He noted that the same distinction was made in the Congenital Disabilities (Civil Liability) Act 1976 (U.K.), 1976, c. 28. That Act exempts a mother from tort liability for prenatal negligence to her children who are born alive. However, the exemption does not apply to prenatal negligence which occurs when the pregnant woman is in breach of her general duty to drive carefully. Therefore, Hoyt C.J.N.B. held that a pregnant woman has a general duty to drive carefully, in relation to both her subsequently born child and third-party motorists. If, as alleged here, the child suffers injury during his or her lifetime as a result of the mother’s negligent driving during pregnancy, the child should be able to enforce his or her rights. To hold otherwise would create a partial exclusion to a pregnant woman’s general duty to drive carefully.
IV. Issue
11 This appeal raises but one issue. Should a mother be liable in tort for damages to her child arising from a prenatal negligent act which allegedly injured the foetus in her womb?
V. Analysis
12 Perhaps as a prelude to considering the public policy aspects of this appeal, it may be helpful to begin with a review of the case law which allows infants to receive compensation in tort for prenatally inflicted injuries.
A. Tort Liability for Prenatal Negligence
13 In Montreal Tramways, supra, a child born with club feet two months after an incident of alleged negligence by the tramcar company brought an action for the prenatal injuries which caused the damages. Lamont J., for the majority, held that the child did indeed have the right to sue. He based his conclusion on the following rationale (at p. 464):
If a child after birth has no right of action for pre‑natal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life carrying the seal of another’s fault and bearing a very heavy burden of infirmity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother. [Emphasis added.]
14 The infant respondent argued that the underlined passage provides a born alive child with the right to sue in tort for all prenatally inflicted injuries, including those allegedly caused by the prenatal negligence of his or her mother. It is true that the reasoning of Lamont J., on behalf of the majority of this Court, was based in part on general principles of compensation and natural justice. However, the decision contains no direct reference to the tort liability of a mother for prenatal negligence. Even if Montreal Tramways, supra, could be understood to encompass tortious acts by a pregnant woman that cause injury to her foetus, it must be emphasized that the decision dealt with the negligence of a third-party tortfeasor. Nothing in the decision suggests that the Court directed its attention to the sensitive issue of maternal tort liability for prenatal negligence. Accordingly, the decision in Montreal Tramways, while important, should not be taken as determinative of the issue raised in this appeal.
15 A different legal analysis was employed to achieve the same result in Duval v. Seguin, [1972] 2 O.R. 686 (H.C.), aff’d (1973), 1 O.R. (2d) 482 (C.A.). In that case, a pregnant woman was involved in an automobile accident caused by the negligent acts of another. Three weeks later, her child was born prematurely with cerebral defects. Fraser J. held that once a child is born alive with injuries caused by an incident of prenatal negligence, the cause of action is complete (at pp. 700‑701):
[T]he law has been clear that it is unnecessary that the damages coincide in time or place with the wrongful act or default. In this connection reference is made to Grant v. Australian Knitting Mills, Ltd., [1936] A.C. 85, and to Dorset Yacht Co. v. Home Office, [1970] A.C. 1004. In these cases the existence of the plaintiffs was unknown to the defendant. It would have been immaterial to the causes of action if the plaintiffs had been persons born after the negligent acts.
. . .
Procreation is normal and necessary for the preservation of the race. If a driver drives on a highway without due care for other users it is foreseeable that some of the other users of the highway will be pregnant women and that a child en ventre sa mère may be injured. Such a child therefore falls well within the area of potential danger which the driver is required to foresee and take reasonable care to avoid.
16 The approach adopted in Duval applies the “neighbour principle” articulated in the famous dictum of Lord Atkin in Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), at p. 580. Since it is reasonably foreseeable at the time of an accident that negligent driving may cause injury to a pregnant woman, the possibility of injury to the child on birth is, as well, reasonably foreseeable. It is this foreseeability that creates a relationship which is sufficiently proximate to give rise to a duty of care. Once the child is born alive with injuries, the relationship crystallizes and the claim for damages can be made. By contrast, the holding in Montreal Tramways, supra, is based in part on a legal fiction borrowed from the civil law. Once the child is born alive with injuries, it is “deemed to have been born at the time of the accident to the mother” (per Lamont J., at p. 465).
17 For the purposes of this appeal, it is not necessary to resolve the differences apparent in the reasoning of Montreal Tramways and Duval. It is sufficient to observe that when a child sues some third party for prenatal negligence, the interests of the newborn and the mother are perfectly aligned. Neither approach addresses the physical unity of a pregnant woman and her foetus, or the post‑natal conflict of interest between mother and child, which are raised in this appeal.
18 It must be added that in City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2, it was recognized that even where a duty of care exists, it may not be imposed for reasons of public policy. Although a duty of care to the born alive child may exist, for reasons of public policy, which will be explored later, that duty should not be imposed upon a pregnant woman. Matters of public policy are concerned with sensitive issues
that involve far-reaching and unpredictable implications for Canadian society. It follows that the legislature is the more appropriate forum for the consideration of such problems and the implementation of legislative solutions to them.
B. Imposing a Duty of Care in this Situation
19 The test set out in Kamloops, supra, must be considered and applied in determining whether the appellant mother should be held liable to her child in the present case. This analysis is particularly important in light of the significant policy consequences raised by this appeal. In Kamloops, it was held that before imposing a duty of care, the court must be satisfied: (1) that there is a sufficiently close relationship between the parties to give rise to the duty of care; and (2) that there are no public policy considerations which ought to negative or limit the scope of the duty, the class of persons to whom it is owed, or the damages to which a breach of it may give rise.
20 The first criterion may be satisfied if it is assumed that a pregnant woman and her foetus can be treated as distinct legal entities. It should be noted that this assumption might be seen as being contrary to the holding of McLachlin J. in Winnipeg, supra, at p. 945 that “the law has always treated the mother and unborn child as one”. Nonetheless, it is appropriate in the present case to assume, without deciding, that a pregnant woman and her foetus can be treated as separate legal entities. Based on this assumption, a pregnant woman and her foetus are within the closest possible physical proximity that two “legal persons” could be. With regard to foreseeability, it is clear that almost any careless act or omission by a pregnant woman could be expected to have a detrimental impact on foetal development. Indeed, the very existence of the foetus depends upon the pregnant woman. Thus, on the basis of the assumption of separate legal identities, it is possible to proceed to the more relevant analysis for the purposes of the present appeal, the second stage of the Kamloops test.
21 However, even if it is assumed that the first stage of the Kamloops test is satisfied, the public policy considerations in this case clearly indicate that a legal duty of care should not be imposed upon a pregnant woman towards her foetus or subsequently born child. The second branch of the Kamloops test requires a consideration of those public policy consequences which may negate or limit the imposition of such a duty of care upon mothers‑to‑be. Although increased medical knowledge makes the consequences of certain behaviour more foreseeable, and facilitates the establishment of a causative link in negligence suits, public policy must also be considered. Significant policy concerns militate against the imposition of maternal tort liability for prenatal negligence. These relate primarily to (1) the privacy and autonomy rights of women and (2) the difficulties inherent in articulating a judicial standard of conduct for pregnant women.
22 In addition, an intervener submitted that to impose a legal duty of care upon a pregnant woman towards her foetus or subsequently born child would give rise to a gender‑based tort, in contravention of s. 15(1) of the Canadian Charter of Rights and Freedoms . That contention may be correct. However, in light of the conclusion reached with respect to the second branch of the Kamloops test, this case need not, and should not, be decided on Charter grounds. It cannot be forgotten that the parties did not address the Charter . Indeed, apart from the submissions of one intervener, no argument was put forward on the Charter . In those circumstances, it is inappropriate to resolve that issue in these reasons.
1. Privacy and Autonomy Rights of Women
23 First and foremost, for reasons of public policy, the Court should not impose a duty of care upon a pregnant woman towards her foetus or subsequently born child. To do so would result in very extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women. It is true that Canadian tort law presently allows a child born alive and viable to sue a third-party for injuries which were negligently inflicted while in utero: Montreal Tramways, supra. However, of fundamental importance to the public policy analysis is the particularly unique relationship that exists between a pregnant woman and the foetus she carries.
(a) Overview
24 Pregnancy represents not only the hope of future generations but also the continuation of the species. It is difficult to imagine a human condition that is more important to society. From the dawn of history, the pregnant woman has represented fertility and hope. Biology decrees that it is only women who can bear children. Usually, a pregnant woman does all that is possible to protect the health and well-being of her foetus. On occasion, she may sacrifice her own health and well-being for the benefit of the foetus she carries. Yet it should not be forgotten that the pregnant woman -- in addition to being the carrier of the foetus within her -- is also an individual whose bodily integrity, privacy and autonomy rights must be protected.
25 The unique and special relationship between a mother‑to‑be and her foetus determines the outcome of this appeal. There is no other relationship in the realm of human existence which can serve as a basis for comparison. It is for this reason that there can be no analogy between a child’s action for prenatal negligence brought against some third-party tortfeasor, on the one hand, and against his or her mother, on the other. The inseparable unity between an expectant woman and her foetus distinguishes the situation of the mother‑to‑be from that of a negligent third-party. The biological reality is that a pregnant woman and her foetus are bonded in a union. This was recognized in the majority reasons of McLachlin J. in Winnipeg, supra, at pp. 944‑45:
Before birth the mother and unborn child are one in the sense that “[t]he ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman”: Paton v. United Kingdom (1980), 3 E.H.R.R. 408 (Comm.), at p. 415, applied in Re F (in utero), [[1988] 2 All E.R. 193]. It is only after birth that the fetus assumes a separate personality. Accordingly, the law has always treated the mother and unborn child as one. To sue a pregnant woman on behalf of her unborn fetus therefore posits the anomaly of one part of a legal and physical entity suing itself.
26 It was recognized in both Montreal Tramways, supra, and Duval, supra, that the strongest argument for imposing a duty of care upon third parties towards unborn children is that tort law is designed to provide compensation for harm caused by negligence and, to a lesser extent, to deter tortfeasors. It was submitted that to deny recognition to the type of action at issue in this appeal could leave an infant plaintiff without the protection and compensation provided by tort law, solely because the defendant is his or her mother. Accordingly, it was argued that the compensatory principle should be the basis for the imposition of a similar duty of care upon expectant women.
27 Yet, this argument fails to take into account the fundamental difference between a mother‑to‑be and a third-party defendant. The unique relationship between a pregnant woman and her foetus is so very different from the relationship with third parties. Everything the pregnant woman does or fails to do may have a potentially detrimental impact on her foetus. Everything the pregnant woman eats or drinks, and every physical action she takes, may affect the foetus. Indeed, the foetus is entirely dependent upon its mother‑to‑be. Although the imposition of tort liability on a third party for prenatal negligence advances the interests of both mother and child, it does not significantly impair the right of third parties to control their own lives. In contrast to the third-party defendant, a pregnant woman’s every waking and sleeping moment, in essence, her entire existence, is connected to the foetus she may potentially harm. If a mother were to be held liable for prenatal negligence, this could render the most mundane decision taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts.
28 Is she to be liable in tort for failing to regulate her diet to provide the best nutrients for the foetus? Is she to be required to abstain from smoking and all alcoholic beverages? Should she be found liable for failing to abstain from strenuous exercise or unprotected sexual activity to protect her foetus? Must she undertake frequent safety checks of her premises in order to avoid falling and causing injury to the foetus? There is no rational and principled limit to the types of claims which may be brought if such a tortious duty of care were imposed upon pregnant women.
29 Whether it be considered a life‑giving miracle or a matter of harsh reality, it is the biology of the human race which decrees that a pregnant woman must stand in a uniquely different situation to her foetus than any third-party. The relationship between a pregnant woman and her foetus is of fundamental importance to the future mother and her born alive child, to their immediate family and to our society. So far as the foetus is concerned, this relationship is one of complete dependence. As to the pregnant woman, in most circumstances, the relationship is marked by her complete dedication to the well‑being of her foetus. This dedication is profound and deep. It affects a pregnant woman physically, psychologically and emotionally. It is a very significant factor in this uniquely important relationship. The consequences of imposing tort liability on mothers for prenatal negligence raise vastly different considerations, and will have fundamentally different results, from the imposition of such liability on third parties.
30 In Winnipeg, supra, the majority rejected an argument which sought to extend tort principles in order to justify the forced confinement and treatment of a pregnant woman with a glue‑sniffing addiction, as a means of protecting her foetus. McLachlin J. observed that difficult legal and social issues arise in examining the policy considerations under the second branch of the Kamloops test. First, the recognition of a duty of care owed by a pregnant woman to her foetus has a very real potential to intrude upon that woman’s fundamental rights. Any intervention may create a conflict between a pregnant woman as an autonomous decision‑maker and the foetus she carries. Second, the judicial definition of an appropriate standard of care is fraught with insoluble problems due to the difficulty of distinguishing tortious and non‑tortious behaviour in the daily life of an expectant woman. Third, certain so‑called lifestyle “choices” such as alcoholism and drug addiction may be beyond the control of the pregnant woman, and hence the deterrent value of the imposition of a duty of care may be non‑existent. Lastly, the imposition of a duty of care upon a pregnant woman towards her foetus could increase, to an unwarranted degree, the level of external scrutiny focussed upon her. In Winnipeg, supra, it was held that the lifestyle choices of a pregnant woman should not be regulated because to do so would result in an unacceptably high degree of intrusion into her privacy and autonomy rights. If that is so, then it follows that negligent acts resulting from unreasonable lapses of attention, which may so often occur in the course of a pregnant woman’s daily life, should not form the basis for the imposition of tort liability on mothers.
31 On behalf of the infant respondent, it was argued that the reasoning in Winnipeg is not determinative because it dealt with the standing of the foetus to sue while still in utero. In Winnipeg, the foetus which sought the detention of its mother‑to‑be was not a legal person and possessed no legal rights. By contrast, the present action is brought on behalf of an infant born alive whose legal rights and interests vested at the moment of birth. In other words, the sole issue in this appeal is whether a child born alive ‑‑ as opposed to a foetus ‑‑ should be able to recover damages for prenatal negligence from every person except his or her mother. Despite the important legal distinction between a foetus and a child born alive, as a matter of social policy and pragmatic reality, both situations involve the imposition of a duty of care upon a pregnant woman towards either her foetus or her subsequently born child. To impose either duty of care would require judicial scrutiny into every aspect of that woman’s behaviour during pregnancy. Irrespective of whether the duty of care is imposed upon a pregnant woman towards her foetus or her subsequently born child, both would involve severe intrusions into the bodily integrity, privacy and autonomous decision‑making of that woman. Accordingly, the policy concerns raised by McLachlin J. in Winnipeg are equally pertinent to this appeal.
32 I am strengthened in this conclusion by the final report of the Royal Commission on New Reproductive Technologies, Proceed with Care (1993), vol. 2, which rejected judicial interventions in pregnancy and birth. The Commission expressed its concern with these same policy issues, and recognized the need to ensure support for pregnant women and their foetuses without interfering with the privacy interests