A prenatal tort is a type of tort that involves unborn children.
Dietrich v. Inhabitants of Northampton first denied recovery for any prenatal torts in 1884. The Dietrich Court ruled that there is no recovery for any prenatal torts because the unborn child does not enjoy the legal rights of a person since the unborn child is still part of the pregnant parent. Thus, the right to recovery or even the cause of action would belong to the pregnant parent and not the unborn child. The Dietrich rule stayed as the standard for 60 years.
Nevertheless, Bonbrest v. Kotz essentially overruled the Dietrich decision in 1946. The Bonbrest Court ruled that the child may bring an action for sustained injuries while within the pregnant parent’s womb if the child is born and viable. If the child is viable (capable of surviving outside of the parent’s womb), then the child does have an independent existence of the parent. Therefore, the ruling in Dietrich does not hold because the alive and viable child is not part of the pregnant parent anymore. After Bonbrest, many cases recognized the right of alive and viable unborn children.
In some jurisdictions, the rule recognizes even more rights to living and viable unborn children. For instance, the Court in Porter v. Lassiter ruled that a fetus becomes a child when it is “quick” or capable of moving in the womb, and not necessarily independent of the parent, and is viable. Another case, Kelly v. Gregory ruled that the child has a right to recover a tortious injury at any point in their prenatal existence as long as the unborn child can prove the injuries, which essentially overruled the viability requirement.
Some examples of causes of action for a prenatal tort include personal injury, wrongful pregnancy (conception), and wrongful birth.
- Personal injury: A child born alive typically has a right to a tort action against negligently inflicted injuries as a fetus from the defendant.
- Also, a mother of an unborn child may recover from injuries sustained to the fetus while pregnant, especially for the “mental suffering”resulting from the birth of an impaired child. However, the courts have split decisions on the possibility of recovery for the children to have a cause of action on their mothers as the result of injuries suffered as a fetus.
- Wrongful pregnancy (conception): Cause of action by the parent who suffered injury from the birth of a healthy child who was born and would not have been born if not for the result of the defendant’s negligence. The negligence could consist of a negligent performance of a contraceptive or sterilization process.
- Wrongful birth: A disabled child who is born and would not have been born if not for the result of the defendant’s negligence. Prime examples of such negligence include the defendant’s failure to detect a genetic defect, failure to diagnose a genetic defect, or a failed abortion.
Measuring the damages suffered by an unwanted child depends on the jurisdiction. In most jurisdictions, the jurisdictions limit the damages to only child-rearing expenses. Nevertheless, some jurisdictions employ the benefits rule, where the calculation curtails the damages for child-rearing expenses and the value of benefits conferred by having and raising the child. An example of the value of benefits conferred would include the enjoyment and companionship from rearing the child. Yet other jurisdictions limit the damages to the injuries incurred by the pregnancy alone (e.g., loss of consortium during pregnancy or birth, lost wages, emotional distress, lost wages during pregnancy). If the child is born unhealthy or disabled, the damage calculation gets a little more complicated. Courts could award damages to the parent for the possible emotional or mental distress suffered from birthing and rearing a child with a disability (See: Greco v. United States).
See: Stallman v. Youngquist, 125 Ill. 2d 267 (1988), Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. 215 (2022), Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114 (1949), Woods v. Lancet, 303 N.Y. 349 (1951).