This case presents the issue whether a child, bom alive, can maintain a cause of action in tort against her mother for personal injuries incurred before birth because of the mother’s negligence. The plaintiff seeks to recover damages based on the alleged negligence of her mother, the defendant Christine MаcDonald, in connection with a two-car automobile
The summary judgment record, viewed in the light most favorable to the plaintiff, see Coveney v. President & Trustees of the College of the Holy Cross,
1. In order to succeed on a claim of negligence, a plaintiff first must establish that the defendant owed a legal duty of care. See Cottam v. CVS Pharmacy,
Whether a duty exists is a question of common law, to be determined by “reference to existing social values and customs and appropriate social policy.” Cremins v. Clancy,
The judge ruled that the defendant did not owe a duty of care to the unborn plaintiff. In his memorandum of decision, the judge noted that no Massachusetts appellate court has recognized the еxistence of such a duty. Guiding himself by cases in other jurisdictions, the judge reasoned that, due to a “unique symbiotic relationship” between a mother and her unborn child, the judicial creation of such a duty, in this case, could raise a multitude of problematic issues, as well as potentially invade the personal choice of pregnant women. We, essentially, agree.
We begin by taking judicial notice of the fact that, during the period of gestation, almost all aspects of a woman’s life may
Recognizing a pregnant woman’s legal duty of care in negligence to her unborn child would present an almost unlimited number of circumstances that would likely give rise to litigation. Courts would be challenged to refine the scope of suсh a duty, including the degree of knowledge expected of a mother in order to pinpoint when such a duty would arise (e.g., at the point of pregnancy; at the point of awareness of pregnancy; or at the point of awareness that pregnancy is a possibility) or the particular standard of conduct to which a rеasonably careful pregnant woman, in a single case, should be held. There is no consensus on if and when a duty such as the one sought by the plaintiff should be imposed, and there is considerable debate with respect to a mother’s civil liability for injuries to her unborn fetus, including disagreement over whether the rights of the child should supersede thе legal rights of the mother. See generally Johnsen, Shared Interests: Promoting Healthy Births Without Sacrificing Women’s Liberty, 43 Hastings LJ. 569 (1992); Beal, “Can I Sue Mommy?” An Analysis of a Woman’s Tort Liability for Prenatal Injuries to her Child Bom Alive, 21 San Diego L. Rev. 325 (1984). No set of clear existing social values and customs exist, and no settled social policy can be identified, to justify the maintеnance of the present lawsuit.
The Texas Court of Appeals, in Chenault v. Huie, supra, agreed with the result in the Stallman case. The court suggested that the asserted duty could have a detrimental impact on women’s activities before pregnancy. See id. at All. The court also noted that creation of such a duty would confront a jury “with questions calling for answers that are inherently value laden and, therefore, not subject to objective or convincing resolution.” Id. at 478.
There are three aрpellate decisions in jurisdictions that have allowed a claim brought against one’s mother for negligently inflicted prenatal injuries. See National Cas. Co. v. Northern Trust Bank,
2. The plaintiff contends that her mother, as the operator of a motor vehicle, had an existing duty of care that extended to all other рersons to operate her automobile in a reasonably careful and prudent manner, see Buda v. Foley,
This court has recognizеd the right of a plaintiff to maintain an independent cause of action for prenatal injuries sustained as the result of the negligence of another. See Payton v. Abbott Labs,
It is true that, had the plaintiff been injured while MacDonald was a passenger in an automobile negligently operated by another, the plaintiff (whether or not she survived) would have been able to recover damages against the operator of the vehicle. There is also no question that, had the plaintiff been bom at the time of the accident, even if only one hour of age, she would have been able to recover against MacDonald for injuries sustained as a result of her mother’s negligence.
We reject the plaintiff’s argument that a rule permitting a child to recover for negligent injuries inflicted before birth by the child’s mother could be restricted solely to a viable fetus claiming negligence in an automobile accident. Massachusetts law рrovides that there is nothing special about injuries incurred in automobile accidents that sets them apart from other negligently caused injuries, and the limitation sought by the plaintiff would be inconsistent with that law. See Stamboulis v. Stamboulis, supra at 764 (“A distinction based on motor vehicle versus non-motor vehicle accidents . . . has no rational justification”). The presence of automobile liability insurance does not create liability where none previously existed. See id. Further, and more importantly, there is no meaningful way to limit such a rule to automobile accidents cases. It would be only a matter of time before the rule could be extended to a myriad of situations that would make рregnant women hable to their viable fetuses for all manner of allegedly negligent conduct.
We agree with the general principle expressed in Restatement (Second) of Torts § 869 (1979), that “[o]ne who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.” The quoted language emphasizes that it is not just a pregnant woman alone who may be harmed by the tortious act of a third party, but also the fetus, whose injuries become apparent at its birth. See Stallman v. Youngquist, supra at 275. There is nothing in the Restatement text, or in comments to the text, to indicate that the drafters of § 869 intended to suggest a legal right, never before recognized in law, for а fetus to bring a claim of negligence against its own mother. As was stated in the Stallman case, id.
Judgment affirmed.
Notes
The plaintiff’s complaint is not included in the record before us. Other documents that are included in the record, however, make clear that, in addition to one claim of negligence against her mother, the plaintiff’s complaint asserted two claims of negligence against Dennis and Anna Ellis, respectively, the owner and operator of the second automobile involved in the accident.
Final judgment, entered under Mass. R. Civ. R 54 (b),
The New Hampshire decision was issued by a divided court, with two dissenting Justices arguing that the court had “failed to fully appreciate the extent of the intrusion into the privаcy and physical autonomy rights of women . . . and [had] ignored the profound implications that such a rule of law holds for all women in this State who are, or may become, pregnant.” Bonte v. Bonte,
A “viable fetus” is a fetus “so far formed and developed that if then bom it would be capable of living.” Commonwealth v. Crawford,
A viable fetus alsо is a “person” for purposes of our motor vehicle homicide statute, G. L. c. 90, § 24G. See Commonwealth v. Cass,
Our decision does not rest on principles of parental immunity, which we abrogated in Sorensen v. Sorensen,