By Kate Wellington*
The question of whether a pregnant woman owes a universal duty of care to her unborn child is as yet unresolved in Australian law. The issue invokes complex policy considerations which have been tackled differently across various jurisdictions. In some jurisdictions, such as Canada, the courts have taken relevant policy factors into account to afford mothers a general immunity from liability in this area. In other jurisdictions, including various States in the United States, the courts have upheld actions brought by infant plaintiffs injured while en ventre sa mere. This article examines the current law across a number of jurisdictions, focusing in particular on several recent Canadian cases, in order to propose the preferable approach to be adopted in Australia. That approach, it is contended, is for the courts to uphold any action falling within the well-established principles of tort law and, if public opinion is contrary to the resulting position, for Parliament to legislate accordingly.
The full article can be accessed here: “Maternal liability for prenatal injury: The preferable approach for Australian law?” (2010) 18 Tort L Rev 89.