Fecondazione: nel 1996 l'Europa approfondiva

III. Prenatal Protection

Common law has always offered protection to prenatal life whether through the recognition of the proprietary (A) or personal (B) rights of the unborn, or more recently by an extension of child protection statutes (C) or finally, by specific statutes protecting foetal life.

... B - Personal Rights

Like the prenatal protection of property rights, the law also provides certain personal rights to in utero life even though limited to certain situations. This recognition is not equivalent of protection vis-à-vis certain behaviors but rather a compensation for injury inflicted in utero on the condition that the child be born alive and viable. The common law courts have long allowed the child to sue for negligence at birth.

In this way, classical tort principles were extended to the foetus, the victim of prenatal injury, provided the foetus was born alive. The Supreme Court of Canada affirmed this position in 1993 in the case of Montreal Tramways Co. v. Léveillée44. This is one of the first reported common law cases recognizing or according to the child the right to sue for in utero injury. While this case emanated from the Civil Code of Quebec, in 1972, the Ontario case of Duval v. Séguin45 came to the same conclusion based on Canadian common law. Two years later, the Supreme Court of Canada46 established that under Canadian common law a foetus must be born alive to exercise rights and that the status of the foetus under tort and family law was identical to that of the civil law of Quebec. Finally, in 1995, in the case of Joshy (guardian ad litem of) v. Woolley47, another Canadian Court allowed the suit of a mother of a child suffering from neutropenia (amongst other injuries). This case concerned an action for negligence against the physician who following a tubal ligation neither warned her of the possibility of pregnancy nor provided nutritional care and adequate advice during pregnancy. The Court also allowed the negligence suit by the child against the physician for lack of prenatal care and appropriate advice to the mother as well as for failure to adequately monitor foetal growth48.

Similar rules prevail in Great Britain. Indeed, in 1974, a legal Commission49 came to the conclusion that the general principle should be that wherever pre-natal injury is caused intentionally, negligently or by a breach of statutory duty, there should be liability for that injury‘50. This principle was later codified in the 1976 Congenital Disabilities (Civil Liability) Act51.

Likewise, the 1972 Australia case of Watt v. Rama52 recognized the right to seek damages for prenatal injury following birth53.

Twenty years after the Supreme Court of the United States in the 1973 case of Roe established that foetal rights were conditional upon live birth, a California Court54 reiterated the right to claim damages for injury caused before or after birth, upon the birth of the child55.

While today these actions in negligence are recognized in all common law jurisdictions, more recent causes of action have expanded classical negligence law principles although not receiving unanimous acceptance. For that reason actions for wrongful birth and wrongful life have had a mixed reception in common law jurisdictions.

Actions in wrongful birth claiming that the birth of child is the fault of a defendant have been used in different contexts. In the four countries under study, there has been some reluctance to recognize this cause of action following the birth of a healthy child. In fact, recourse for wrongful birth (following failure of sterilization, contraception or abortion) where the child is born healthy, has been rejected on several occasions and for different reasons56. The attitude of the Court is however, completely different when parents seek damages for the birth of a disabled child. In the latter situation, the Courts have held that where breach of care of the physician was proven the parents were deprived of their right to make an informed decision with regards to conception or abortion57.

If this cause of action for wrongful birth on behalf of a disabled child is slowly gaining approval in common law jurisdiction, the recourse for wrongful life which seeks to provide compensation to a child for the fact of being born with certain handicaps has not been generally received (with the exception of certain American cases). Three arguments have been made against this recourse. The first is that from the point of view of the child, the physician though at fault did not cause the harm since what the physician did was to allow the child to exist. This argument is based on the premise that human life does not constitute an injury. The second argument, concerns the incoherence of such a recourse since it is impossible to compare life with handicap with non-existence. The third argument, is based on the difficulty to calculate the damages to be awarded. Nevertheless, only time will tell whether with the advent of new genetic technologies allowing more precise calculation of genetic risks and this even prior to implantation of the embryo, these new causes of action will increase. Symptomatic of the emergence of the embryo and the foetus as a distinct legal entity‘, these causes of action reflect not only the flexibility and multiplicity of the legal means in favor of such recognition, but also the absence of specific statutes aiming to protect in utero life.

... A - Legal status of the embryo ex utero

The legal status of the embryo ex utero is still largely controversial. While the creation of embryonic life ex utero is scientifically possible, there is little case law or legislation on the question. Furthermore, most legislation prefers to avoid the issue of status and concentrate on the regulation or prohibition of certain practices.