A prenatal tort is a tort involving an unborn child.
The 1884 case Dietrich v. Inhabitants of Northampton established the rule that denied recovery for prenatal torts; this rule would be followed for the next 60 years. In Dietrich, the court stated that an unborn child is part of the pregnant person and is not a legally recognizable person. Any right to recovery or cause of action belonged to the pregnant person
However, in 1946, Bonbrest v. Kotz essentially overruled the Dietrich decision. The court in Bonbrest held if a child is born alive and viable, the child may bring an action for injuries sustained while in the womb of its mother. The court reasoned that if a child is viable, meaning capable of surviving outside of the mother’s womb, then the Dietrich court’s reasoning that the child did not have an existence independent of the pregnant person was flawed.
After the Bonbrest decision, the right of children to recover for injuries sustained in-utero gained widespread acceptance. For example, the courts in the 1949 Ohio case Williams v. Marion Rapid Transit and the 1951 New York case Woods v. Lancet embraced the Bonbrest viability standard.
Some jurisdictions have gone even further than the court in Bonbrest and allow actions to be brought under a broader range of circumstances. For example, the court in Porter v. Lassiter held that a fetus becomes a child not when it is capable of surviving outside the womb, but when it is “quick” or capable of moving in the womb. The court in Kelly v. Gregory does away with the requirement of viability entirely, stating that if a child sustained a tortious injury at any period of their prenatal existence and can prove the effect of the tort on them, the child has a right to recover.
Causes of Action
Prenatal tort causes of action include personal injury, wrongful birth, wrongful life, and wrongful pregnancy.
Personal Injury. Generally, a child born alive has a right of action in tort against a defendant for injuries negligently inflicted when the child was a fetus. A prenatal injury to a fetus may also constitute an injury to the mother and, therefore, may permit the mother to recover damages for the “mental suffering resulting from the birth of a defective child.” Courts are split on whether a child has right to maintain an action against their mother for the mother's negligent conduct that results in prenatal injury.
Wrongful Birth. Actions by parents who suffer damages as a result of the birth of an impaired child who, but for the negligence of the defendant, would not have been born. Cases may arise from the defendant's failure to diagnose or discover a genetic defect in the parents or the infant through prenatal testing or from the defendant's failure to prevent pregnancy altogether, such as a failed abortion.
Wrongful Life. Actions brought by the child who asserts that but for the defendant’s negligence, they would not have been born and suffered impairment.
Wrongful Conception/Pregnancy. Actions by parents who suffer damages resulting from the birth of a healthy child who, but for the defendant’s negligence in performing contraceptive or sterilization procedures, would not have been born.
In the case of a healthy, but unwanted child, the damages vary depending on jurisdiction. Damages are generally limited to child-rearing expenses. Some jurisdictions have adopted the benefits rule, where damages for child-rearing expenses are reduced by the value of benefits conferred by having and raising the child, for example, enjoyment or companionship. While other jurisdictions limit damages to the pregnancy itself; for example, medical expenses and loss of consortium during the pregnancy and birth, emotional distress, the mother's lost wages, and the mother's pain and suffering during the pregnancy and childbirth.
The damages also vary where a child is born unhealthy or impaired. In some cases, the court may give damages for the expenses brought on by the child’s disability or impairment. Courts may also award damages to the parents of the child for the emotional distress or mental distress of birthing and raising a disabled child.
[Last updated in July of 2020 by the Wex Definitions Team]