Pre-Natal Fictions and Post-Partum Actions

The author examines the theory of liability for pre-natal injuries adopted by Canadian courts. This theory has recently been adopted by the New Brunswick Court of Appeal in an unprecedented decision that allows an infant to sue its own mother for alleged negligent conduct that occurred prior to the child's birth. The author argues that, despite contrary claims, the present theory of liability relies on the judicial use of a legal fiction. He maintains that this fiction has been stretched beyond its theoretical limits and concludes that courts are no longer justified in adopting the present theory of liability in cases where a child sues its own mother. He ends by suggesting that courts must undertake a deeper analysis of the issues relevant to a determination of the properscope of recovery for pre-natal injuries.