## Facts

- Cynthia Dobson, approximately 27 weeks pregnant, was driving in poor weather when she was involved in a motor-vehicle collision alleged to have been caused by her negligent driving.
- The fetus was injured in utero and delivered prematurely by Caesarean section the same day.
- The child, Ryan, was born with permanent mental and physical impairments, including cerebral palsy, alleged to be caused by the prenatal injuries.
- Ryan, through a litigation guardian, sued his mother in negligence seeking damages for the prenatal injuries.
- The claim was practically tied to accessing automobile liability insurance coverage.
- A motion judge and the provincial appellate court allowed the negligence action to proceed, recognizing that a duty of care could be owed in these circumstances.

## Issues

1. Whether a child may maintain a negligence action against the child’s mother for injuries allegedly caused by the mother’s negligent conduct while pregnant.
2. Whether public policy negates any prima facie duty of care between a pregnant woman and her fetus or subsequently born child regarding the woman’s conduct during pregnancy.

## Decision

- The Supreme Court of Canada allowed the mother’s appeal and barred the action.
- The majority declined to impose a duty of care on a pregnant woman to her fetus or subsequently born child for her own conduct during pregnancy.
- The Court treated the relationship as unique and held that broader policy considerations outweighed any prima facie foreseeability/proximity.
- The Court distinguished suits against third parties for prenatal injuries (permitted) from suits against the pregnant woman herself (barred).
- The dissent would have recognized a duty of care, relying on ordinary negligence doctrines (standard of care, causation, remoteness) to limit liability.

## Legal Principles

- A court may deny recognition of a negligence duty of care where residual policy considerations outweigh a prima facie duty based on foreseeability and proximity.
- The common law does not recognize a duty of care owed by a pregnant woman to her fetus or subsequently born child for the woman’s negligent acts during pregnancy.
- Policy reasons supporting non-recognition include protection of women’s bodily integrity, privacy, and autonomy; the risk of intrusive scrutiny of daily life and medical decisions during pregnancy; and the impracticality of coherent judicial line-drawing over permissible conduct.
- Liability of third parties for prenatal injuries suffered by a child born alive remains available; the bar applies to maternal liability for self-directed prenatal conduct.
- Any compensation regime imposing maternal liability for prenatal conduct is a matter for legislative choice rather than judicial extension of negligence law.

## Conclusion

The Court held that, even if harm to a future child from prenatal conduct may be foreseeable, public policy precludes courts from imposing a negligence duty on pregnant women toward their fetuses or subsequently born children for the women’s conduct during pregnancy, leaving any change to legislatures.


Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753 (Can. 1999)