JUSTICE

Ryan vs. his Mom

Can a woman be sued for damage to her fetus?

MARY JANIGAN December 21 1998
JUSTICE

Ryan vs. his Mom

Can a woman be sued for damage to her fetus?

MARY JANIGAN December 21 1998

Ryan vs. his Mom

JUSTICE

Can a woman be sued for damage to her fetus?

MARY JANIGAN

The Dobson family’s tragedy began about 12:30 p.m. on a vile mid-March day in 1993 as they drove south, through blustering snow, towards Moncton, N.B. Steve Dobson veered wildly out of control on a lethal stretch of slush and drifting snow on Route 126—but he managed to correct his course. His wife, Cynthia, following behind, was not so lucky. Her Chevrolet Sprint slid into the northbound lane, slamming head on into a Ford pickup truck. She survived, but she was almost seven months pregnant. Her son, Ryan, delivered by caesarean section later that day, suffers from serious mental and physical problems from his injuries, including cerebral palsy. Last week, almost six years after that fateful collision, contending lawyers for the son and for the mother and her insurance company appeared before all nine judges of the Supreme Court of Canada with a breathtaking question: can a child sue his mother for prenatal injuries caused by negligent operation of a motor vehicle?

The answer to that deceptively simple inquiry, which is not expected for several months, will make Canadian legal history. In 1933, the Supreme Court ruled that a child—“born alive”—could bring action for injuries suffered in the womb through the negligence of a third party. But the Court has never been asked if the mother is in the same position as a third party: that is, can the mother be held responsible for injury to her “born alive” child as a result of negligent conduct while pregnant? Is there any difference in the legal relationship between a mother and her fetus—and a third party and the fetus? What, for that matter, constitutes negligence during pregnancy?

During the hearing, which lasted for more than three hours, James and Ann MacAulay, lawyers for five-year-old Ryan, insisted that their case was narrowly focused: his mother simply owed the same duty of care to Ryan when she operated a motor vehicle as she owed to other people. They accepted that a fetus has no status as a person under Canadian law: last year, for example, the Supreme Court ruled that a pregnant woman, addicted to glue sniffing, could not be confined against her will—because “a pregnant woman and her unborn child are one.” As Ryan’s lawyers’ statement to the court declared: “This is not a case asserting fetal rights. It is not an intrusion on a woman’s fundamental human

rights.” They asked for a narrow ruling on the right to sue for negligent driving.

But other parties to the case, as well as the judges themselves, clearly perceived the potentially explosive implications. In separate interventions, two church groups argued that the fetus was a distinct entity—and therefore the mother was in the same legal position as a third party. Abortion rights activists countered that if Cynthia Dobson were held accountable for her driving, pregnant

mothers would face judicial scrutiny of their everyday activities—from shovelling the sidewalk to keeping their jobs. As Justice Frank Iacobucci noted: “Isn’t that a significant decision in terms of saying to all pregnant women: You now have a duty owed to a fetus?’ ” Chief Justice Antonio Lamer added that the Court might be usurping the role of legislators with its decision: “It’s a legislature undertaking that is difficult for the courts to do.” The Dobson case has transfixed—and troubled—the courts since its inception. In 1995, with Ryan’s parents’ tacit blessing, his maternal grandfather Gerald Price, acting as Ryan’s so-called litigation guardian, launched action against Cynthia Dobson and the driver of the other vehicle, alleging negligence. The Dobson family’s insurance company, which has not been named, retained legal counsel to defend her—and to protect its own interests. The insurance firm

has already agreed to an undisclosed settlement for Ryan, who lives with both parents. But if the boy wins the right to sue his mother, the company has agreed to make a further payment without the requirement of additional court proceedings.

In early 1997, Justice Richard Miller of the New Brunswick Court of Queen’s Bench concluded that Ryan could sue his mother for negligence while he was in the womb, adding that the implications of the decision were manifold. “Can a child at birth sue the mother because she used narcotics or drank alcoholic beverages?” he wondered. “Did the mother over-exercise [or] follow an unsafe diet program?” Later last year, three judges of the New Brunswick Court of Appeal agreed—although they considerably narrowed the grounds for their decision: Cynthia Dobson had a general duty to drive carefully—and this was not a duty “peculiar to parenthood.” In effect, the court tried to

draw a distinction between duties that any person owes to others and lifestyle choices during pregnancy.

Nothing in the case is simple—including what constitutes “general” duties. As Cynthia Dobson’s lawyer, Robert Barnes, noted, the case has opened a Pandora’s box. Where would a mother’s general duty of care to the fetus end—and where would duties “peculiar to parenting” begin? Would the mother be excused from liability if the accident occurred while she was driving to her obstetrician’s office? “A mother is inseparable from the fetus during the nine months of pregnancy,” Barnes told Maclean’s. ‘To equate her risk and her duty of care to that of a third party discriminates against her: she is always at greater risk of liability.” With momentous consequences in the balance, it is perhaps no wonder that the judges themselves seemed daunted by Ryan’s tragic question. □