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Liable for your fetus?

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#1 cara

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Posted 31 October 2016 - 10:32 AM

Hello Codex,

 

I'm working on a really interesting case where essentially a child sued their mother for negligence (this is tort law, NOT criminal) while he was in her womb.

 

She was recklessly driving and caused an accident which resulted in her fetus being born prematurely with mental and physical disabilities.

 

http://www.canlii.or...l?resultIndex=1

 

So the question is, should a mother be held liable for harming their fetus?

 

The courts found that she was not liable, on the basis that it threatens pregnant women's autonomy if legislation begins to try to regulate their actions to this extent.

 

I understand that to many people this may be tied in with abortion, but as the courts clarified, let's look at this as an unrelated subject. Liability only when a mother intended on 'keeping it'. Ie, a woman is pregnant with every intention of having the child.

 

What do you think? Do you think women should be held liable for injuring their unborn child? What about in the case of FASD? 

 

Please be respectful and no name calling of any sort .. or else.

 

Ps sorry if any of this doesn't make sense I'm on about four different kinds of medications right now



#2 KyloRen

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Posted 31 October 2016 - 10:42 AM

No I don't think they should. Sometimes a woman may catch a disease that can harm their child, now what are they supposed to do about that? Punish the woman for catching a disease?

 

What if they were taking accutane and their BC failed and they didn't notice or they couldn't get plan B? (Didn't take the pill at the same time each day, condom broke,ect). Accutane has serious effects on unborn children, the mother shouldn't be punished for it. 

 

As for fetal alcohol syndrome, I still say no. It's the mother's choice to drink while pregnant, and they're adults and should be allowed to make their own decisions, even if they're completely stupid. Just take the kid away, get the mom into rehab, and then return the kid when the mom is no longer an alcoholic. 

 

As for car accidents, if the mother was driving responsibly but was hit by a drunk driver, or someone who ran a stoplight (or just didn't look before turning), how can one blame and punish the mother for anything? 

 

If we start punishing mothers for damage done to a fetus, we might as well think of a fetus as a full person and just completely ban abortion since it kills a "person".  (Please note, I am pro-choice!)



#3 Ladida

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Posted 31 October 2016 - 11:18 AM

I know next to nothing about law. Would the mother have been charged if her reckless driving had resulted in the death of the fetus?



#4 cara

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Posted 31 October 2016 - 12:37 PM

As for fetal alcohol syndrome, I still say no. It's the mother's choice to drink while pregnant, and they're adults and should be allowed to make their own decisions, even if they're completely stupid. Just take the kid away, get the mom into rehab, and then return the kid when the mom is no longer an alcoholic. 

 

As someone who literally works for the people who take the kid away trust me when I say it's not that simple. :p

 

The big issue is more if the child is entitled to money compensation before he was born. The fact is, if the mother harmed the child after he was born, he would have merit to sue. 

 

I know next to nothing about law. Would the mother have been charged if her reckless driving had resulted in the death of the fetus?

 

So the mom isn't actually being charged with anything. That's criminal. In this case, the child is suing for money as compensation for her reckless behavior that caused him harm.

 

But interestingly enough, think of this. If she had hit another car and killed someone else's fetus, she could be charged with murder in criminal law.

 

So basically, her reckless behaviour cannot cause her to be charged with killing her own fetus but she can be charged with killing someone else's. 



#5 Ubermensch

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Posted 31 October 2016 - 12:48 PM

Sets a very dangerous precedent. There's a vast, vast amount of dangers and risks when it comes to pregnancy and if this type of legal recourse becomes acceptable, it would further diminish a females reproductive rights.

#6 DonValentino

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Posted 31 October 2016 - 03:06 PM

Wow, interesting case! Gosh, I mean, if you're born disabled because of the (avoidable) actions of your mom, that's gotta be tough. I definitely understand the want to be compensated for a lifetime of hardship that is essentially because of the actions of someone else. Would probably be one of the hardest things to police though. 

 

I feel like a child should be able to sue if the direct actions of the mother or father during pregnancy had a significant adverse effect on the child's life, but I think it would have be very clear cut. Like, ongoing negative impacts, such as drinking or drug use that continues over a period of time. I don't think you could ever have enough evidence for something as spontaneous as a car crash. 

 

Yeah, no idea, I'd have to give it more thought. But thanks for brining it up.



#7 ortin

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Posted 31 October 2016 - 05:20 PM

I think this is an interesting case, and is an example of how the stance "fetus's aren't people" can be gray.



#8 ohml

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Posted 31 October 2016 - 05:32 PM

Indeed an interesting case.  You said that she was recklessly driving, with that I think that the woman is 100% liable. It is kind of similar to a driver under the influence injuring its passengers in an accident. If it was not her fault, I don't think she should be held liable.



#9 Drakonid

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Posted 31 October 2016 - 06:40 PM

No I don't think they should. Sometimes a woman may catch a disease that can harm their child, now what are they supposed to do about that? Punish the woman for catching a disease?

 
You can't control that, the comparison is irrelevant

As for fetal alcohol syndrome, I still say no. It's the mother's choice to drink while pregnant, and they're adults and should be allowed to make their own decisions, even if they're completely stupid. Just take the kid away, get the mom into rehab, and then return the kid when the mom is no longer an alcoholic.

If you decide to keep the kid then I believe you should be held accountable for any possible problem a child might have from your drinking. Now, you might say "I'M AN ADULT, MUH RIGHTS!!!" Well, you have the right to own and shoot a firearm, but you can't use your weapon against another person. "BUT FETUSES AREN'T PEOPLE!!!!" While I agree with that, they have decided to keep the parasite and they are actively doing something that damages the fetus.

#10 Kaddict

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Posted 31 October 2016 - 07:22 PM

This is a tough subject, thanks for bringing it up @cara!

Well, as much as I would like to say that parents should be held liable for avoidable consequences (FAS and drugs use), 95% of the time, it is not entirely clear if drugs (for instance) were the actual cause of your child's birth defects. Yes, they can cause a billion problems on the baby, but the majority of those problems can happen for no apparent reason as well (albeit much more rarely). It is really a sticky situation and I am not sure yet about my stance on the topic. Also, a lady came and talked to my med school class my first year about FAS (her son has it) and it really changed my outlook on the moms--it isn't always just a negligent mother who knows she is pregnant but doesnt give a shit. There are extenuating circumstances (like how her abusive partner made her drink tons of hard liquor every day, and even though she stopped when she found out she was pregnant, the damage was done). 

So... it is tough. idk.



#11 cara

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Posted 31 October 2016 - 09:53 PM

I'm glad that everyone finds it interesting!  ^_^

 

Sets a very dangerous precedent. There's a vast, vast amount of dangers and risks when it comes to pregnancy and if this type of legal recourse becomes acceptable, it would further diminish a females reproductive rights.

 

I'm not sure I understand how this would impact their reproductive rights?

 

Wow, interesting case! Gosh, I mean, if you're born disabled because of the (avoidable) actions of your mom, that's gotta be tough. I definitely understand the want to be compensated for a lifetime of hardship that is essentially because of the actions of someone else. Would probably be one of the hardest things to police though. 

 

I feel like a child should be able to sue if the direct actions of the mother or father during pregnancy had a significant adverse effect on the child's life, but I think it would have be very clear cut. Like, ongoing negative impacts, such as drinking or drug use that continues over a period of time. I don't think you could ever have enough evidence for something as spontaneous as a car crash. 

 

I'm glad you found it interesting!!

 

So she was guilty of causing the car crash. That was already established. I'm not sure if that changes your opinion but I thought I would throw that out there?

 

I think this is an interesting case, and is an example of how the stance "fetus's aren't people" can be gray.

 

I think for me it's more like 'fetus's aren't people but if you intend for them to be one day, then don't harm them'?

 

Indeed an interesting case.  You said that she was recklessly driving, with that I think that the woman is 100% liable. It is kind of similar to a driver under the influence injuring its passengers in an accident. If it was not her fault, I don't think she should be held liable.

 

It was her fault, that's the point of the case. The court expresses that no other relationship on this earth can boast having the same immunity that a pregnant woman does with her unborn child. Every single person has a duty and standard of care to meet with every single other person and can be find liable for injuring other people. But not a pregnant woman with her unborn child. It's interesting.

 

If you decide to keep the kid then I believe you should be held accountable for any possible problem a child might have from your drinking. Now, you might say "I'M AN ADULT, MUH RIGHTS!!!" Well, you have the right to own and shoot a firearm, but you can't use your weapon against another person. "BUT FETUSES AREN'T PEOPLE!!!!" While I agree with that, they have decided to keep the parasite and they are actively doing something that damages the fetus.

 

I basically agree. Except I probably would have worded it a bit more gently.  :whistling:

 

The only issue that I would have is the floodgate effect. Which I basically think is the reason why the courts threw this case out (/tinfoil hat). Because there are a lot of shitty parents out there and a lot of kids would be entitled to seek compensation if allowed.

 

This is a tough subject, thanks for bringing it up @cara!

Well, as much as I would like to say that parents should be held liable for avoidable consequences (FAS and drugs use), 95% of the time, it is not entirely clear if drugs (for instance) were the actual cause of your child's birth defects. Yes, they can cause a billion problems on the baby, but the majority of those problems can happen for no apparent reason as well (albeit much more rarely). It is really a sticky situation and I am not sure yet about my stance on the topic. Also, a lady came and talked to my med school class my first year about FAS (her son has it) and it really changed my outlook on the moms--it isn't always just a negligent mother who knows she is pregnant but doesnt give a shit. There are extenuating circumstances (like how her abusive partner made her drink tons of hard liquor every day, and even though she stopped when she found out she was pregnant, the damage was done). 

So... it is tough. idk.

 

I'm glad you like the case. ^_^ 

 

So ... you're right. You can't 100% know whether or not the drugs used by the mother (in your instance) were the actual case of the child's birth defects. But in civil law, you don't need to. You just need to prove on a balance of probabilities, it was probably caused by that. Literally if it is 50.1% likely that the defects were a result of the mother's actions then the court would find against her. 

 

Also, I don't .. really know what to say to that. I don't feel as though there is any acceptable justification for hurting an unborn child in that way. IMO, that lady is careless and if the courts allowed it, her son should go after her for damages (money) in unintentional tort. The law has long since decided that saying 'oops, I didn't know' is NOT a defense to causing harm.

 

Spoiler



#12 Amethyst

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Posted 31 October 2016 - 09:59 PM

No, she shouldn't. How on earth would she anticipate a car accident? 


The only time a mother should be liable is if the baby came out addicted to something. 



#13 cara

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Posted 31 October 2016 - 10:06 PM

No, she shouldn't. How on earth would she anticipate a car accident?


The only time a mother should be liable is if the baby came out addicted to something.


I think the test they use is the reasonable person test .. so, if you're doing 200 in a 50 zone and driving like a lunatic, you can reasonably foresee that a risk for a car accident is high? I'm not sure. I would have to read the case where she was found liable for causing the accident and see how they determined that she caused the accident.

#14 Amethyst

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Posted 31 October 2016 - 10:08 PM

I think the test they use is the reasonable person test .. so, if you're doing 200 in a 50 zone and driving like a lunatic, you can reasonably foresee that a risk for a car accident is high? I'm not sure. I would have to read the case where she was found liable for causing the accident and see how they determined that she caused the accident.

 

You have a point there, yeah. I don't know the details on that. 

 

If she was driving stupidly, then she should be in a bit of trouble. I didn't fully read the article either. 



#15 Drakonid

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Posted 01 November 2016 - 04:29 PM

I basically agree. Except I probably would have worded it a bit more gently.  :whistling:

No.

#16 cara

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Posted 01 November 2016 - 07:20 PM

No.

 

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#17 Theancientone

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Posted 05 November 2016 - 03:52 PM

If it is blatant and proven neglect of the baby, yes. More so for things like substance abuse. In the state I live if you are suspect of drug abuse they will test your baby and if your baby has substances in their system they take your child. My biological brothers were born either with fetal alcohol syndrome, or addicted to hard drugs and went through withdrawal. If you have ever seen a new born baby in withdrawal, even if you don't like children, you can clearly see the pain and distress on their faces and their bodies, seizures, weight loss, brain damage, deformations, it's an outrage honestly. Don't have a baby if you can't be bothered to drive safely IMHO.

#18 friendlytrenchcoat

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Posted 12 February 2017 - 03:24 PM

Noooo that creates waaayyy too much gray area



#19 Unique

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Posted 27 February 2017 - 08:26 PM

If you are recklessly driving, and injure some else fetus, or your own, and you do not get a abortion, despite knowing the chance of deformity, the child comes out with a deformity caused by the accident, the mother should be held accountable as other wise the child would be normal, most likely. If it was accidental, such as a freak accident like someone running into her, she shouldn't be held accountable.
Just my 2¢ on this topic, feel free to respond :)

#20 Jess

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Posted 28 February 2017 - 09:38 AM


If you are recklessly driving, and injure some else fetus, or your own, and you do not get a abortion, despite knowing the chance of deformity, the child comes out with a deformity caused by the accident, the mother should be held accountable as other wise the child would be normal, most likely. If it was accidental, such as a freak accident like someone running into her, she shouldn't be held accountable.
Just my 2¢ on this topic, feel free to respond :)

I don't necessarily agree with this, just based on the sheer number of things that can cause any number of deformities. You'd have to be able to prove that the car accident specifically caused the deformity, and I think in most cases, that would be hard to prove. It wouldn't be as simple as just having an ultrasound afterward, because you would've had to have had one within a reasonable amount of time prior in order to prove the baby was fine beforehand, which most women (at least here) wouldn't have unless they got into the accident in the month after their growth scan or if they had a high-risk pregnancy. Not to mention all the other variables, such as, what type of wreck would cause a chance of deformity? A fender-bender on a woman with an anterior placenta where her stomach hits the steering wheel could cause placental abruption, reduce blood-flow to the infant, and cause mental or physical retardation. So would EVERY car accident after a certain gestational age be cause for a woman to wonder if she should get an abortion or not?




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