Parental Liability for Prenatal injury

By Atal Anand & Pratik Sainy [1]


In the past three decades, the child’s right to claim damages from a third party has changed drastically. Injuries that affect the development of an unborn child resulting from another person’s negligence are considered prenatal injuries. Before 1947, the Court usually denied the child’s cause of action. However, nowadays, almost all states recognize the child’s right to the action. It is also true that many courts will deny recovery “if the foetus was not visible at the time of injury.”

Foetuses are recognized as individual patients by the medical profession; it also said that a foetus is a patient separated from the mother for few months, so the Law has considered that it is entitled to legal protection. Today, almost all states recognized a child’s right to act against a third party for prenatal injuries. Nowadays, medical research rapidly establishes a general relationship between the various things that work under human control and particular complications occurring to the child. Some of the factors are- cigarettes, alcohol, drugs, and lack of proper nutrition and diet. The fast case in which a child is allowed for prenatal injuries is Grodin v. Grodin. [2] The Court permitted a child to sue her mother for prenatal harm; on one side, the law provides a woman the right to control her body. On the other side, the Law says that it is a child’s right to be born healthy where she cannot consume or harm her body during the pregnancy period, ultimately affecting a child’s development.

Early, i.e., in common law, which recognized that the prenatal harm suffered to the child had no foundation for an action in damages. By the time law is changed because various scientific proof developed that foetus has a separate existence in mother womb, which later assured the Court that the life exists in the womb is capable of Right different from mother itself. The recovery of damages due to prenatal harm in a brief existence has created considerable controversy like every case discussed the unique and complicated legal issue. The judiciary found it challenging to prove the relationship between prenatal injury and negligence act due to which it caused. The Court later said that “when a foetus reaches viability, the state may prohibit the mother from obtaining an abortion, except when necessary to protect the life or health of the mother.” “The legislation regulating prenatal harm and deaths have undergone such a significant transformation that it reflects a near-complete shift in legalistic thought.” The underlying question that judicial review is grappling with is whether or not an unborn child has legal standing for the right of prenatal injuries, which allows individual to take action, apart from this, other issue encountered by the Court in assessing the challenges and truth in connection to the child’s injuries.


The first case to consider for a child to recover from his prenatal harm is Dietrich v. Inhabitants of Northampton. [3] Justice Holmes, a renowned judge of the Court of Massachusetts, denied the child the right to recover for the injury suffered. In this case, Dietrich established the direction of judicial decisions in prenatal harm for the next seven decades. These all things bar the suits between parent and child for tort like intentional or personal.

In Hewellette v. George, [4] the Mississippi court refused the child’s claim where he was clamming for civil redressal from his mother for personal injuries suffered due to malicious confinement in asylum and thereby created the parent-child immunity doctrine. Likewise, in McKelvey v. McKelvey, [5] the Court looked into the parental protection doctrine. In this case, too, the Court dismissed the stepmother’s argument for personal injuries. The Court ruled that Hewellette has no power to impose what it described as a well-established law regulating parental-child relationships.

The above cases are a great example where Court strictly provided immunity to parent-child lawsuits. There is another primary argument developed from appreciation and compliance with the doctrine. The denial theory gave various justification like preservation from family, removal of child and parent custody, maintenance of prenatal authorities.


In India as per as govt. Data, 10 percent of all live birth of babies born with some defects and 25 percent of these defects are caused merely by some environmental factor during pregnancy. The high reported congenital malformation is solely the factor through which unborn child can raise their concern. Recently, the advancement of medical like implanting fertilized eggs in women’s bodies, has increased fear and anxiety for the better health of a child. These things developed the child’s right to sue a third-person tortfeasor for the negligent act that causes prenatal injuries.

In 1884, Massachusetts Supreme Court came across its 1st American opinion on tortious liability for prenatal injury. The name of the case was Dietrich v. Inhabitants of Northampton. [6] In which the Court relied on the lack of precedent and allowed recovery for negligently caused prenatal deaths. The premise was that the foetus was a part of the mother in a wrongful death action.

The decision not to recover damages for injuries sustained by a child in the venture. Three years later, in William v. Marion Rapid Transit., [7] where a subsequent child has suffered damages after this case, Ohio supreme court was the first tribunal to impose liability after this case law related to prenatal injuries get rapid acceptance.

To defend the various rights and succession in property of a child, there are many different but for the separate life of an unborn child “and defense against criminal conspiracy;” Law is not recognized correctly. The judiciary should adequately recognize the foetus which is separate existence for tort redress.” The Law should not prioritize the protection of property over the safety of individuals.


Apart from the universal recognition of proper action against prenatal injuries, the various courts have set their guidelines before claiming damages; a foetus must reach a given stage of development. Also, most of the country’s recovery of damages is allowed when a foetus is visible during the injury suffered. The visibility rule is evolved from case to case like Dietrich v. Inhabitant of Northampton, which laid the concept that the foetus is part of the mother. Later in Bonbrest v. Kotz, [8] where tribunal court said: that the foetus could sustain life independent of a mother,” which gave a new concept in the judiciary.

The rule of visibility is very complicated to apply because it is an interdependent concept. It depends on the development of an individual foetus. The age of the foetus is not the correct tool to measure visibility. Infect, there is no tool available to measure whether the foetus is visible at the time of injury suffered. It is impossible to measure visibility; visibility theory is impractical as a measuring tool for liability.

With the development of technology, abortion through an artificial machine is also evolved. The third-party liability for prenatal can only be possible if a child could prove proximate cause. The plaintiff must show that the mother is negligent of taking care which caused child disabilities or deformities.

Scientist has developed various tools to increase awareness of how environmental factors impact foetus, it became susceptible to legal proof. Even today, “teratology” is considered as the unusual degree of scientific speculation, incorrect perception, and mistake because no one can find positivity in it. Many theories and concepts have been developed to give a proper explanation of the environmental causation of congenital abnormalities. As per the theory, “congenital malformations result from injury to the foetus during certain critical periods when the embryo is susceptible to adverse influences.” In the organogenetic period, abnormalities in a child occur if any disruption is caused during this critical period.


The parent can play a significant role in the development of prenatal injuries to their child. The most common prenatal injuries of a child arise due to maternal disruption. As we know, that child can recover from the third person for the damage caused to them; similarly, the child can claim damages from their parent. Many considerations apply whether the tortfeasor is a parent or a third person.

A. Role of a parent in causing Prenatal Injuries

The most familiar situation is when a parent is held directly responsible for causing prenatal injuries to their child when physical accidents result from parent negligence. However, there are other various ways in which an unborn child may get injured. However, nutrition plays a critical role in the health and growth of a child. According to the survey, 40% of children born with disabilities are due to a lack of proper nutrition intake during pregnancy. Lake of essential nutrition can affect the growth and development of the brain of a child. Also, a protein deficiency diet results in smaller babies. More minor birth weight children suffer from physical and mental defects and have a higher mortality rate.

The intake of drugs can hurt an unborn child. It passes through the placenta membrane of the mother’s body. Consumption of any kind of drugs during pregnancy can cause injuries to the foetus. Some of the adverse impacts of drugs are quinine, which can cause deafness in children, antibiotics may damage bone development, and cough medicine can cause goiter, skeletal, or brain damage. Even paracetamol and sleeping pills can cause adverse impacts. Sometimes mother exceeds the dosages of drugs that the foetus cannot tolerate and ultimately prenatal injuries to the child.

The adverse effect on foetal can be seen due to the maternal disease during pregnancy, and sometimes foetal death may also occur. Moreover, if disease occurs during the period, there is a high risk of developmental derangement. There are numerous ways parents can injure their unborn child, as the mother involves in sexual intercourse during the ninth month of pregnancy. She may be interested in doing heavy work or carrying a heavy load during the last stages of her pregnancy, or she decides to make available drugs to induce rapid labour during her pregnancy.

B. The Prenatal Right of autonomy

In some states, like “United States supreme court has recognized that a right of autonomy” also guarantees certain zones and personal privacy exists under their constitution. The individual right is the ordered liberty which is a guarantee from the official regulation. The Court has “assumed a congeries of particular discrete rights enjoying some Defence against violation even for the public good,” even though it has not formulated a criterion for assessing “fundamentality.” The Court has created a hierarchy of private rights to balance private rights with societal wellbeing. ‘The Right to sovereignty protects parental discretion in certain matters concerning the child’s health, as per the Court. Certain sides of the family bond, such as the decision not to conceive or bear offspring, and the freedom to decide on the child’s educational” or religious upbringing, are also covered by this privilege.

When a person is restrained from acting, they are free to do it in another situation. For example, a person is free to jump and practice kicks in the air; he would not be liable until it hit someone in the process of doing so. According to the Court, “True liberty for all may not exist under the operation of a philosophy that acknowledges the right of each person to use his or her own, whether in respect of his or her person or property, regardless of the harm that may be done to others,”

C. Parent Autonomy and children right to be born sound

Even though the Court recognizes the uniqueness of the family relationship, which necessitates constitutional security of parental choice, it has ruled that “In matters concerning a child’s wellbeing, the state has a broad range of powers to restrict parental freedom and authority.’ The Law acknowledges an autonomous state interest in rearing and protecting children within its boundaries under the doctrine of parents, i.e., patriae. According to the Supreme Court, “A democratic society’s survival depends on the balanced, well-rounded development of young people into fully mature citizens, with all that entails. It can protect it from impeding restraints and dangers across a wide range of selections. Therefore, the state has to limit parental options when both child and parent interest collapses. ‘Allowing minors to receive medical attention despite their parents’ objections demonstrates that in judicial understanding, parental decisions are not necessarily the child’s best interests. When the children’s parents’ rights and child rights collapse between each other, then the courts consider the value of the child’s rights. There is a special right given to the parent in medical treatment.


When the number of courts abolishes the parent-child tort privilege doctrine, the parent’s immunity combined with third-party liability becomes increasingly untenable. The contradictory and illogical dismissal of the parents becomes increasingly egregious and unfair, with medical science’s growing knowledge of the various ways parents can permanently impair the child’s physical and mental wellbeing.

Whether a stranger or a parent commits prenatal injuries, the act is punishable. The action is tortious, and the person who is performing it has no legal bearing. Parents’ rights should be limited when it collapses with a child’s request to be born whole when it comes to autonomy. To the correct obligation, Parents should be informed of the pregnancy as soon as they are aware of it or should be aware of it. The statute should recognize the responsibility to protect. At that point, the child will be given proper care, care that they need.

Holding the parent to the standard of a reasonably prudent expectant mother or father Liability for unreasonably endangering the foetus would be guaranteed by this standard. Simultaneously, by balancing the scales, such a standard Liability can be avoided in the parents’ interest and the unborn child for behavior that a responsible parent would engage in.

A lawsuit for prenatal injuries brought by an infant against its parent has yet to be filed. Despite the challenges that such a suit can be registered, courts might be required to rule on such claims shortly. It is hoped that at that point, the courts would be motivated by the ordinary Law’s hallmark versatility in adapting to changing circumstances.

[1] Third Semester, BBA LLB (Hons.), Kirit P. Mehta School of Law, Mumbai.

[2] Grodin vs. Grodin, 102 Mich. App.396 (1980).

[3] Dietrich v. Inhabitants of Northampton, Massachusetts Supreme Judicial Court 138 Mass. 14 (1884).

[4] Hewlett v. George, 9 So. 885 (Miss. 1891).

[5] McKelvey v. McKelvey, ARKANSAS COURT OF APPEALS DIVISION I Nov 18, 2020, Ark. App. 536.

[6] Dietrich v. Inhabitants of Northampton, Massachusetts Supreme Judicial Court 138 Mass. 14 (1884).

[7] Williams v. Marion Rapid Transit, Chicago, Ill. Vol. 17, (Jan 1, 1949): 395.

[8] BONBREST et al. v. KOTZ et al., Civ. A. No. 26607.District Court of the United States for the District of Columbia (1946).

[9] Mary K. Kennedy, Maternal Liability for Prenatal Injury Arising from Substance Abuse during Pregnancy: The Possibility of a Cause of Action in Pennsylvania, 29 DUQ. L. REV. 553 (1991).

[10] Carol Ann Simon, Parental Liability for Prenatal Injury, 14 COLUM. J.L. & Soc. Probs. 47 (1978).

[11] Valerie D. Barton, Reconciling the burden: Prenatal Liability for the Tortious Acts of Minors,             51               EMORY              Law               journals,877        (2002).

[12] Shrinivas Shree, Tort Liability of Parent to a minor child, Indian Law Journal, Vol 26, issue 3, (2015).

[13] Deborah Santello, Maternal tort liability for prenatal injuries, Suffolk UL Rev, vol 22, 747, 1998.

[14] O. Shramova, The Right to Health of the Child in Prenatal Stage, LAW REV. KYIV U.L., Vol 4, 50, (2017).

[15] Erin L. Nelson, Prenatal Harm and the Duty of Care, 53 ALTA. L. REV., vol 4, 933, (2016).

[16] Mark Aronson, Misfeasance in public office: A Very Peculiar tort, Melbourne University Law                       Review,                        vol                       1,1-51,                          (2011).

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