A Balancing that is Beyond the Scope of the Common Law: A Discussion of the Issues Raised by Dobson v. (Litigation Guardian of) Dobson

This article examines whether a child should have the legal right to sue its mother for harms alleged to have been caused by her negligence during pregnancy. The author begins with an overview of relevant jurisprudence on the legal status of the fetus and on the right of children to sue a third party for pre- birth injury. Jurisprudence on the right of a child to sue its mother for pre-birth injury is also outlined.

The author then critically examines the decision of the Supreme Court of Canada in Dobson (Litigation Guardian of) v Dobson where the court held, on public policy grounds, that a child did not have the legal right to sue its mother. In the author's view, this decision is correct given the limitations of the common law, although it does not appropriately balance the interests of pregnant women with those of injured children who require compensation for their special needs.

She advocates legislative reform because the legislature is better equipped to deal with polycentric issues and would be able to provide a particularized, results-oriented response. Specifically, the author recommends legislation, patterned on the United Kingdom's Congenital Disabilities Act, 1976, which would allow a child to sue its mother only where the alleged negligence relates to the operation of a motor vehicle. The author argues that such legislation is the best way to provide children like Ryan Dobson with the care they need, while avoiding the harmful consequences of imposing a general tort liability on pregnant women vis-a-vis their fetuses.