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Whenever someone commits a tortious wrong, the party that suffers because of it has the right to receive compensation for the same. For this to happen, it is essential for the law of the land to recognize the rights and legal character of the aggrieved party. In many unfortunate instances, the injured parties have also consisted of unborn children who suffered prenatal injuries because of the tort committed by third parties or their mothers. This gives rise to the question of considering an unborn child as a legally recognized person or not. Some choose to view the mother and her unborn child as a single entity and the identity of the child is added to that of the mother. Others think that unborn children have rights of their own that are not necessarily merged with that of the mothers. Over time, this question has been answered differently across many countries. In this article, some important cases in this regard are discussed to further our understanding of these issues.


In America initially, children’s suits for prenatal injuries were not allowed. Since Dietrich v. Inhabitants of Northampton,[1] the rights of children who suffered injuries in the womb were not recognized as they were assumed to not possess “personhood” for a legal suit. Not just American cases but also foreign cases mirrored this principle. For instance, in a case in Ireland, Walker v. Great Norther Railways,[2] recovery was not allowed for reasons that unborn children are not to be viewed as separate from the mother and the defendant did not know of its existence. Later, some courts introduced new perspectives. In Bonbrest v. Kotz,[3] when the plaintiff filed a suit for prenatal injuries suffered due to the defendant, the court decided against the Dietrich case principle. The defendant insisted that because the child had not been born at that particular time, there was no basis of action. The court held that after a child is born (alive), he/she can file a suit for any injury suffered while in the womb. Therefore, this case changed the policy that was being followed earlier. Many courts in America have also now allowed children to bring legal suits against their biological mothers for prenatal injuries inflicted upon them through means such as substance abuse. They are considered to have infringed the rights of their unborn children to not be exposed to harm in utero. Such children’s actions for damages are sustained as a recognition of their right to be born healthy.[4]

The United Kingdom has the Congenital Disabilities (Civil Liability) Act, 1976 to recognise actions in cases filed by children born disabled due to someone else’s fault. The action is allowed if the child is born alive. Defences that can be pleaded by defendants include contributory negligence on part of parents or a relevant contract with the parents. Mothers can be held liable for causing injury to their foetuses while driving a motor vehicle negligently. In Australia too, actions are allowed against mothers for negligent driving. In Bowditch v. McEwan,[5] the defendant’s car collided with another vehicle due to her negligence and the plaintiff who was in her womb then suffered disabilities due to the injuries of the said collision. Here, the court held that pregnant mothers did have a duty of care towards their unborn children. In a Canadian case, Montreal Tramways v. Leveille,[6] a pregnant passenger fell from a tram car because of the company motorman’s mistake and consequently, her child was born with club feet. It was held that children born with disabilities resulting from wrongful acts of third parties can bring a suit against such wrongdoers. In Dobson v. Dobson,[7] a child sued his mother for negligent driving resulting in his birth in the twenty-seventh week and subsequently, causing disabilities to him. The court held that mothers cannot be burdened more by imposing additional legal duty of care. While such children can sue if harm is caused by third parties, their mothers cannot be made liable for prenatal injuries. Canadian courts have also divided cases of medical negligence into two broad categories. First, where negligence is claimed to cause disabilities and second, where negligence results in the birth of a child who otherwise would not have been born. While remedies lie for the former category, there are no remedies for the latter. Courts are often in dilemma because of conflicting interests and duties such as choosing between the welfare of either mother or her foetus in some cases.[8]


In India, there is no separate statute dealing with the issue of whether or not an action in torts lies for prenatal injuries. For answering this, we take the help of the English statute itself.[9] It is pertinent to note that in Union Carbide Company v. Union of India,[10] unborn victims of the Bhopal Gas Tragedy who suffered disabilities were allowed to receive compensation for the same. In Said-ud-in v. Welfare Commissioner,[11] a mother who was a Bhopal gas leak victim claimed compensation for the death of her daughter. She alleged that because she inhaled the poisonous gas while pregnant with her daughter, it led to the deterioration of the child’s health who was in her womb then. The doctor also examined the case and found medical evidence to support the mother’s claim. The court was of the opinion that the mother was entitled to compensation based on this evidence.

In a Bombay High Court case, Vadar v. Proctor and Gamble India,[12] a collision in motor vehicles resulted in the death of the expecting mother along with her foetus of 28 weeks. The husband of the deceased woman brought a suit on behalf of both his wife and their unborn child. The court held that for maintaining the suit, the unborn child should be recognized as a “person” in the eyes of the law. This child, however, was never born and did not hold the status of a person. In the same case, it was further pointed out that even the Hindu Law allows vesting of rights in unborn children but their enforcement is possible only when the child is born alive. Yet, in a Madhya Pradesh High Court case, a lady who gave birth to a stillborn male child due to an accident was awarded additional compensation because there was sufficient nexus between the accident and the cause of death of the child.[13]


From the cases discussed above, it can be inferred that prenatal injury still remains an area with a lot to explore and decide not only in India but also in many other countries. While precedents have been established, many courts have changed or rejected previous decisions based on their own interpretations of the matters that come to them. Now, children can sue for prenatal injuries sustained. Usually, in cases where third parties are the wrongdoers, the case is deemed maintainable. However, whether a child should be allowed to bring any legal case against his/her mother for any injury he/she suffered in the womb has still not received a vivid and uniform answer. The viability of the fetuses, the rights and liberties of pregnant women and the duty of care owed by the mothers to their unborn children have become a constant source of debate among learned individuals in the field of law. Bringing laws that deal with prenatal injuries can remove unnecessary ambiguity surrounding the subject and prove to be immensely helpful for children who unfortunately go through these ordeals.

Author(s) Name: Kumari Kanishka (Symbiosis Law School, Noida)


[1] Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884).

[2] Walker v. Great Northern Railway, (1891) L.R. Ir. 69.

[3] Bonbrest v. Kotz, 65 F. Supp. 138 (DDC 1946).

[4] Andrew J. Weisberg & Frank E. Vandervort, A Liberal Dilemma: Respecting Autonomy While Also Protecting Inchoate Children from Prenatal Substance Abuse, 24 WM. & MARY BILL RTS. J. 659 (2016).

[5] Bowditch v. McEwan, [2003] 2 Qd R 615.

[6] Montreal Tramways v. Paul Leveille, 1933 S.C.R. 456.

[7] Dobson v. Dobson, [1999] 2 S.C.R. 753.

[8] Erin L. Nelson, Prenatal Harm and the Duty of Care, 53 ALTA. L. REV. 933 (2016).


[10] Union Carbide Company v. Union of India, AIR 1992 SC 248.

[11] Said-ud-din v. Court of Welfare Commissioner Bhopal Gas Victims Tribunal, (1997) 11 SCC 460.

[12] Margappa Vadar v. Proctor and Gamble India, Mumbai and another, (2008) 4 Bom CR  820.

[13] Shraddha v. Badresh, 2006 ACJ 2067.