US LAW Maternal Tort Liability

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Deborah M. Santello, Maternal Tort Liability for Prenatal Injuries, 22 Suffolk U. L.
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MATERNAL TORT LIABILITY FOR
PRENATAL INJURIES
"There is no question that conception sets in motion biologicalprocesses

which if undisturbedwill produce what every one will concede to be a per-
son in being. If in the meanwhile those processes can be disrupted result-
ing in harm to the child when born, it is immaterial whether before birth
the child is considered a person in being. And regardless of analogies to
other areas of the law, justice requires that the principlebe recognized that
a child has a legal right to begin life with a sound mind and body."* With
the acknowledgment of a child's right to recoverfor prenatalinjuries sus-
tained as a result of negligent acts of thirdpersons and the recent abroga-
tion of parental immunity by many states, granting a child the right to
recover for neglectful prenatal care is the seemingly logical extension of
tort law. This Note investigates the emergence of prenatal recovery, the
demise of the parent-child tort immunity doctrine, the maternal role in
causing congenital defects to the unborn child, and the duty of care to
which an expectant mother should be held. This Note concludes with a
submission that a child be allowed to recoverfor prenatalinjuries suffered
as a result of negligent maternal conduct.
I. INTRODUCTION
In recent years, jurists and legal scholars have respectively concluded
that children should possess the right to be born with a sound mind and
body.' Medical science, in fact, recognizes a fetus as a separate and dis-
tinct patient, apart from its mother.2 Traditionally, however, courts have
not afforded a fetus complete satisfaction of the law.'
* Smith v. Brennan, 31 N.J. 353, 364, 157 A.2d 497, 503 (1960) (Proctor, J.).
1. See Smith v. Brennan, 31 N.J. at 364, 157 A.2d at 503 (child has legal right to begin
life with healthy mind and body); Comment, PrenatalLiability for Preconception Negligence.
Do ParentsOwe a Legal Duty to Their PotentialChildren?, 22 CAL. W.L. REV. 289, 289 (1986)
(paramount value of human life suggests right to be born with sound mind and body).
2. See J. PRITCHARD, P. MACDONALD & N. GANT, WILLIAMS OBSTETRICS xi (17th ed.
1985) (fetus designated as second patient); see also Smith v. Brennan, 31 N.J. at 364, 157 A.2d
at 502 (medical authority clearly acknowledges infant separate biological entity prior to birth).
Authorities inconsistently define the term fetus. See, e.g., STEDMAN'S MEDICAL DICTION-
ARY 520 (24th ed. 1982) (product of conception from end of eighth week to birth); TABER'S
CYCLOPEDIC MEDICAL DICTIONARY 614 (15th ed. 1985) (fetus exists from three months to
birth); THE MOSBY MEDICAL ENCYCLOPEDIA 289-90 (1985) (fetus human child in utero usu-
ally from eighth week of gestation to birth); see also BLACK'S LAW DICTIONARY 559 (5th ed.
1979) (unborn offspring from seven or eight weeks after conception to birth).
For purposes of this Note, the precise term fetus has no legal significance and will describe
the entire period of the child in utero from conception to birth. The term in utero generally
refers to the child within the uterus before birth. TABER'S CYCLOPEDIC MEDICAL DICTION-
ARY 869 (15th ed. 1985).
3. See Roe v. Wade, 410 U.S. 113, 162 (1973) (law never acknowledged unborn children
SUFFOLK UNIVERSITY LAW REVIEW [Vol. XX11h747
Courts have long recognized a child's right to recover for prenatal in-
juries suffered as a result of the negligent acts of a third person.4 Fur-
thermore, a majority of courts have abrogated the parent-child tort
immunity doctrine.5 Medical technology, moreover, has revealed the im-
portance of the mother's role in protecting the fetal environment. 6 These
legal and medical advancements have set the tone for a potential new
cause of action.7 Unconsciously, courts have established the opportunity
for litigation between mother and child.' No longer unrealistic is a
child's cause of action against its mother for prenatal injuries sustained
during pregnancy due to maternal negligence. 9 Indeed, in Grodin v.
Grodin, o the Court of Appeals of Michigan found a mother as liable for
negligent conduct resulting in prenatal injuries as a third person."
The purpose of this Note is to analyze and establish the foundation
and consequences of this potential cause of action by a child against its
mother. First, the author will survey the law regarding prenatal injuries.
Second, the Note will address the current status of the parental immunity
doctrine and its impact upon a child's potential claim. A review of the
medical literature will then expose the potential maternal role in causing
prenatal injuries. Finally, this Note will conclude with an analysis of the
duty owed an unborn child and the standard of care the courts should
require mothers to exercise.
as whole persons); Byrn v. N.Y. City Health & Hosp. Corp., 31 N.Y.2d 194, 200, 286 N.E.2d
887, 891, 335 N.Y.S.2d 390, 394 (1972) (law fails to acknowledge unborn as person in whole
sense); Parness & Pritchard, To Be or Not to Be: Protecting the Unborn's Potentiality of Life,
51 U. CIN. L. REV. 257, 257, 263 (1982) (unborn inconsistently recognized as person).
4. See infra notes 30-40 and accompanying text (discussing demise of entity theory and
rise of child's right to action).
5. See infra notes 95-107 and accompanying text (examining fall of parental immunity).
6. See E. PAGE, C. VILLEE & D. VILLEE, HUMAN REPRODUCTION-ESSENTIALS OF RE-
PRODUCTIVE AND PERINATAL MEDICINE 313-15 (198 1) (emphasizing importance of maternal
nutrition in fetal development); J.PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at
254-60 (discussing essential need for proper prenatal care by mother); see also infra notes 123-
73 and accompanying text (discussing congenital abnormalities resulting from affirmative ma-
ternal conduct).
7. See infra notes 52-72 and accompanying text (analyzing legal recognition of child's
right to recover for prenatal injuries); notes 95-107 and accompanying text (discussing abroga-
tion of parent-child immunity barrier); notes I 11-168 and accompanying text (identifying med-
ical aspects of possible prenatal injury litigation).
8. See Beal, "Can I Sue Mommy?" An Analysis of a Woman's Tort Liabilityfor Prenatal
Injuries to Her Child Born Alive, 21 SAN DIEGO L. REV. 325, 326 (1984) (development of
prenatal law in conjunction with abrogation of parental immunity unintentionally provides
framework for lawsuits between child and mother).
9. See Note, ParentalLiabilityfor PrenatalInjury, 14 COLUM. J.L. & SOC. PRoBS. 47, 48
(1978) (chance of suit no longer remote).
10. 102 Mich. App. 396, 301 N.W.2d 869 (1980).
11. Id. at 400, 301 N.W.2d at 870.
1988] MATERNAL TORT LIABILITY
II. PRENATAL INJURIES
A. HistoricalBackground
In Dietrich v. Inhabitants of Northampton,2 the first case to consider

the issue of an infant's right to recover for prenatal injuries,' 3 Justice
Holmes of the Supreme Judicial Court of Massachusetts denied a child
the right to compensation for injuries suffered while en ventre sa mere. 4
Dietrich established the direction of judicial decisions in the prenatal in-
jury area for the next sixty-two years.' 5 In Dietrich, an administrator
instituted a wrongful death action on behalf of a child as a result of the
mother's fall on a defective highway. 6 The maternal injuries suffered by
the mother culminated in a miscarriage and premature birth. 7
Although the child did not directly sustain personal injuries, its prematu-
rity caused the infant to survive only ten to fifteen minutes.' 8 The ad-
ministrator based the claim upon a statute allowing him to maintain an
action on behalf of any person against a negligent party for the loss of
one's life.' 9
Denying the action, Justice Holmes concluded that the court could not
recognize the fetus as a person having locus standi because the fetus
failed to live separate from its mother. 20 The court reasoned that because
the fetus was part of its mother, the law could not acknowledge the fetus'
independent existence, and thus prohibited any cause of action on its be-
half.2 ' Justice Holmes further found the child's damages while in utero
too removed to allow the infant to recover, and limited recovery to the
12. 138 Mass. 14 (1884).

13. Id. at 15.
14. Id. at 17. En ventre sa mere is a term descriptive of an unborn child in its mother's
womb. BLACK'S LAW DICTIONARY 479 (5th ed. 1979).
15. See Allaire v. St. Luke's Hosp., 184 I11.359, 368, 56 N.E. 638, 640 (1900) (court con-
curred with Dietrich views and denied recovery), overruled by Amann v. Faidy, 415 I11. 422,
114 N.E.2d 412 (1953); see also Drobner v. Peters, 232 N.Y. 220, 224, 133 N.E. 567, 568
(1921) (law at that time opposed recovery); Lipps v. Milwaukee Elec. Ry. & Light Co., 164
Wis. 272, 276, 159 N.W. 916, 917 (1916) (infant en ventre sa mere part of mother hence inca-
pable of separate rights); accord 4 RESTATEMENT OF TORTS § 869 (1939) (adopting view de-
nying recovery for negligent infliction of prenatal injury).
16. Dietrich v. Inhabitants of Northampton, 138 Mass. at 14-15.
17. Id. at 15.
18. Id.
19. Id. at 14.
20. Id. at 16. Locus standi designates an individual's right of standing in court. BLACK'S
LAW DICTIONARY 848 (5th ed. 1979).
21. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 17 (1884) (fetus part of
mother at time of incident and damages for its injuries recoverable only by mother); Beal,
supra note 8, at 328 (view that fetus with no separate existence logically concludes no cause of
action); Comment, supra note 1, at 291 (entity theory presumes mother and fetus one being
and thus child never capable of suing on own behalf).
SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXII:747
mother.2 2
Subsequent courts adhered to the Dietrich decision and refused to rec-
ognize a cause of action for prenatal injuries to a child born alive. 23 Five
major justifications emerged as the rationale for denying recovery: 24 lack
of precedent,2" absence of duty owed to an unborn child because it was
part of its mother, 26 difficulty in ascertaining the existence of a causal
connection between the injury and the negligent act,27 possibility of ficti-
tious or fraudulent claims, 28 and a fear that allowance of such an action
would eventually permit children to maintain claims against their own
mothers for injuries caused by maternal negligence during pregnancy.2 9
Notwithstanding uniform adherence to the rule denying liability for
prenatal injuries, in a much quoted dissent to the Supreme Court of Illi-
nois' decision in Allaire v. St. Luke's Hospital,3 ° Justice Boggs criticized
Justice Holmes' entity theory.3 In Allaire, a child was born with severe
personal injuries due to a doctor's negligent care and treatment of the
child's mother during pregnancy. Justice Boggs argued that lack of
22. Dietrich v. Inhabitants of Northampton, 138 Mass. at 17.

23. See, e.g., Allaire v. St. Luke's Hosp., 184 Ill. 359, 56 N.E. 638 (1900) (relying on
Dietrich and its holding that fetus not separate individual), overruled by, Amann v. Faidy, 415
Ill. 422, 114 N.E.2d 412 (1953); Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567 (1921) (follow-
ing Dietrich); Lipps v. Milwaukee Elec. Ry. & Light Co., 164 Wis. 272, 159 N.W. 916 (1916)
(endorsing concept that fetus incapable of obtaining detached legal existence).
24. See White, The Right of Recovery for Prenatal Injuries, 12 LA. L. REV. 383, 390-406
(1952) (detailed discussion of principal reasons to deny recovery); see also infra notes 25-29
and accompanying text (identifying justifications for denying recovery).
25. See Allaire v. St. Luke's Hosp., 184 Ill. at 368, 56 N.E. at 640 (province of legislature
to create new rights), overruled by, Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953);
Dietrich v. Inhabitants of Northampton, 138 Mass. at 15 (no case known which decided sur-
viving infant could maintain action for prenatal injuries).
26. See Drobner v. Peters, 232 N.Y. at 224, 133 N.E. at 568 (duty owed to mother not
unborn child physiologically part of mother).
27. See Stanford v. St. Louis-San Francisco Ry., 214 Ala. 611, 612, 108 So. 566, 566 (1926)
(recovery inappropriate if grounded on mere conjecture and speculation as to cause of condi-
tion even though child may suffer permanent damage); Magnolia Coca Cola Bottling Co. v.
Jordan, 124 Tex. 347, 360, 78 S.W.2d 944, 950 (1935) (impossible to verify condition of child
proximately caused by injury except by conjecture and speculation).
28. See Stanford v. St. Louis-San Francisco Ry., 214 Ala. at 612, 108 So. at 566 (specula-
tive nature of prenatal injury recovery may preclude valid claim for permanent injury); Mag-
nolia Coca Cola Bottling Co. v. Jordan, 124 Tex. at 360, 78 S.W.2d at 950 (allowing such
litigation likely to ignite many fictitious claims).
29. See Allaire v. St. Luke's Hospital, 184 Ill. 359, 368, 56 N.E. 638, 640 (1900) (litigation
for maternal negligence during pregnancy logically follows if prenatal injury action recog-
nized), overruled by Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953). Ironically, it is
precisely this fear that this Note addresses and seeks now to establish.
30. 184 Ill. 359, 56 N.E. 638 (1900).
31. See Allaire v. St. Luke's Hosp., 184 Ill. at 368-74, 56 N.E. at 640-42 (Boggs, J., dis-
senting) (addressing lack of precedent and same entity justifications in discrediting majority
decision), overruled by Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953).
32. Id. at 360-63, 56 N.E. at 638-39 (Boggs, J., dissenting).
precedent was insufficient to deny the cause of action.3 He proceeded to

establish a basis for recovery by reasoning that the fetus was no longer a
part of the mother's body if it was viable, and thus capable of surviving
outside the mother.3 4
The United States district court for the District of Columbia accepted
fully the viability standard in Bonbrest v. Kotz.35 The district court held
that a cause of action existed for prenatal injuries to a viable unborn
child subsequently born alive. 36 The court found a viable child capable
of extrauterine life and thus not "part" of its mother in the sense of a
constituent element.3 7 Proponents of the viable child persuaded the
court to allow the suit to stand based upon the fundamental rule of tort
law affording compensation for injuries sustained as a result of the con-
duct of another.3a More importantly, the court stated that the child had
an inherent and sacrosanct right to the possession and enjoyment of its
life, with full use of its limbs and body. 39 The court further observed that
the denial of such an action would compel the child, without any fault on
its part, to endure life carrying the seal of another's fault and bearing the
heavy burden of infirmity and inconvenience without any compensation
therefore.'
33. See id. at 368, 56 N.E. at 640 (Boggs, J., dissenting) (absence of adjudicated case at
common law not indispensible to establish right of recovery for prenatal injuries). Justice
Boggs opined further that the common law crime of murder occurs where an unborn child dies
in utero due to an unlawful beating of the pregnant mother. Id. at 371, 56 N.E. at 641 (Boggs,
J., dissenting). He found it inconsistent to accord a child who died more rights than one who
received the same injury and survived. Id. at 371-72, 56 N.E. at 641 (Boggs, J., dissenting).
When a fetus dies under these circumstances, he posited, the law regards the injury as inflicted
on a human being, yet the law denies a right of recovery to one who lives by contending that
the mother and child are one entity. Id. (Boggs, J., dissenting).
34. Id. at 370, 56 N.E. at 641 (Boggs, J., dissenting). Boggs predicated his theory on the
fact that the viable child reached a period of gestation in which the fetus is capable of in-
dependent and separate life from the mother. Id. (Boggs, J., dissenting). Viability is defined as
the ability of a child to live outside the womb by natural or artificial life support systems.
BLACK'S LAW DICTIONARY 1404 (5th ed. 1979).
35. 65 F. Supp. 138 (D.D.C. 1946). A leading commentator hailed Bonbrest as "the most
spectacular abrupt reversal of a well-settled rule in the whole history of the law of torts." W.
PROSSER, HANDBOOK OF THE LAW OF TORTS § 55, at 336 (4th ed. 1971).
36. Bonbrest v. Kotz, 65 F. Supp. at 142.
37. Id. at 140. The court dismissed application of the entity theory to a viable child as a
contradiction in terms. Id.
38. See id. at 141-42 (adopting logic of Supreme Court of Canada for compensating child
for tort occuring in utero); see also W. PROSSER supra note 35, § 1, at 6 (function of tort law to
afford compensation).
39. Bonbrest v. Kotz, 65 F. Supp. at 142.
40. Id. at 141-42 (quoting the Supreme Court of Canada in Montreal Tramways v. Le-
veille, 4 D.L.R. 337, 345 (1933)). The court also expressed concerns similar to those of Justice
Boggs respecting incongruities in recognizing a fetus as a human being under criminal and
property law but failing to do so under tort law principles. Id. at 140-41.
B. The Viability Controversy

The right of recovery for a viable child injured en ventre sa mere and
subsequently born alive gained judicial acceptance after the Bonbrest de-
cision. 4 ' Legal scholars, however, strongly criticize judicial use of viabil-
ity as a standard for recovery.4 2 Criticism of the standard arose from the
troublesome application of the rule due to the concept's ambiguity and
its dependence upon the maturation of each particular fetus.4 3 Courts
were incapable of identifying any one indicator leading to a conclusion of
viability and independent survival. 44 For example, age failed to act as a
precise determinant of viability." Moreover, medical science was unable
to reach a consensus concerning a precise time during fetal development
when viability is evident.4 6 Only immediate birth could demonstrate via-
bility of a fetus at the time of an injury.4 7
In response to these criticisms of inadequacy and medical advances of
41. See, e.g., Tursi v. New England Windsor Co., 19 Conn. Supp. 242, 248, 111 A.2d 14,
17 (1955) (recovery permitted for prenatal injuries to viable fetus suffered seven weeks before
birth); Steggall v. Morris, 363 Mo. 1224, 1233, 258 S.W.2d 577, 580 (1953) (wrongful death
action allowed for infant which survived then died from injuries sustained three days before
birth on ground that viable fetus could maintain action had it survived); Woods v. Lancet, 303
N.Y. 349, 357, 102 N.E.2d 691, 695 (1951) (viable fetus injured during ninth month of preg-
nancy could maintain action for damages); see also RESTATEMENT (SECOND) OF TORTS
§ 869(1) (1965) (adopting view that child tortiously injured in utero entitled to recovery).
42. See, e.g., Beal, supra note 8, at 330 (condemnation of courts' stopping at viability);
Note, supra note 9, at 55-56 (predicting recovery on viability at time of injury unjust); Com-
ment, supra note 1, at 292-93 (scrutinizing viability standard as against public policy).
43. See Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 352-53, 367 N.E.2d 1250, 1252 (1977)
(viability relative criterion); see also RESTATEMENT (SECOND) OF TORTS § 869 comment d
(1965) (recovery not predicated on any fixed or definite stage of fetal maturation); W. PROS-
SER, supra note 35, § 55, at 337 (criticizing viability as indeterminate criterion dependent on
many matters); Note, supra note 9, at 56 (viability distinction difficult to apply based on spe-
cific fetus); Note, The Impact of Medical Knowledge on the Law Relating to PrenatalInjuries,
110 U. PA. L. REV. 554, 564 (1962) [hereinafter Note, Impact] (concept of viability extremely
relative and sustained by myriad of factors).
44. See, e.g., Roe v. Wade, 410 U.S. 113, 159 (1973) (judiciary need not speculate and
resolve complex question of when life begins); Renslow v. Mennonite Hosp., 67 Ill. 2d at 352,
367 N.E.2d at 1252 (viability dependent on weight of child, health of mother and stage of
development, among others); Smith v. Brennan, 31 N.J. 353, 367, 157 A.2d 497, 504 (1960)
(discussing difficulty in establishing viability); see also Comment, supra note 1, at 292-93 (no
point in time which court could conclusively presume survival).
45. See Renslow v. Mennonite Hosp., 67 Ill. 2d at 352-53, 367 N.E.2d at 1252 (viability
dependent on factors other than length of development); Smith v. Brennan, 31 N.J. at 367, 157
A.2d at 504 (viability not solely determined by age).
46. See STEDMAN'S MEDICAL DICTIONARY 1556 (24th ed. 1982) (fetus of 500 grams in
weight and 20 weeks from conception); THE MOSBY MEDICAL ENCYCLOPEDIA 778 (1985)
(infant weighing at least 100 grams at birth or carried en ventre sa mere for at least 28 weeks);
cf Roe v. Wade, 410 U.S. 113, 160 (1973) (court noted viability determined at seven months
but may occur as early as twenty-four weeks).
47. See Smith v. Brennan, 31 N.J. at 367, 157 A.2d at 504 (impossible to determine viabil-
ity at time of injury unless fetus immediately born); cf Note, A MaternalDuty to ProtectFetal
Health?, 58 IND. L.J. 531, 540 (1983) (determination of viability varies from case to case).
biological development, an increasing number of courts renounced viabil-

ity as a bar to recovery.48 Some courts, however, refused to expressly
extinguish the viability requirement and limited recovery for prenatal in-
juries to actions in which the injury occurred to the viable fetus.4 9
Others abandoned the viability designation completely and permitted re-
dress for injuries inflicted from the time of conception.5 ° A trend now is
evolving recognizing a cause of action for negligence committed prior to
conception causing injury to a subsequently conceived fetus.51
C. Current Status of PrenatalInjury Recovery
Three jurisdictions continue to follow Dietrich and deny recovery for

prenatal injuries.52 The majority of states reject Dietrich and incorporate
48. See infra notes 54, 57 & 58 and accompanying text (listing jurisdictions eliminating
viability requirement and allowing recovery from conception).
49. See infra notes 55 & 56 and accompanying text (discussing those jurisdictions tolerat-
ing recovery only for viable fetus).
50. See infra notes 54 & 57 and accompanying text (discussing those jurisdictions authoriz-
ing compensation for prenatal injuries from point of conception).
51. See Bergstreser v. Mitchell, 577 F.2d 22, 25 (8th Cir. 1978) (extending Missouri law to
predict cause of action for preconception negligence); Renslow v. Mennonite Hosp., 67 Ill. 2d
348, 353, 357, 367 N.E.2d 1250, 1253, 1255 (1977) (rejecting viability as criterion for prenatal
injury action and finding liability to one not yet in existence); Comment, supra note 21, at 296
(trend toward cause of action for preconception negligence).
52. See Kuhnke v. Fisher, 210 Mont. 114, 120, 683 P.2d 916, 919 (1984) (unborn or still-
born child not "minor child" under wrongful death statute); Smith v. Columbus Community
Hosp., Inc., 222 Neb. 776, 780, 387 N.W.2d 490, 492 (1986) (denying cause of action to child
under wrongful death statute); Lawrence v. Craven Tire Co., 210 Va. 138, 142, 169 S.E.2d 440,
442 (1969) (relying on theory unborn child incapable of juridical existence). Montana has not
directly faced the issue of prenatal injuries for a child born alive, but has considered the issue
in connection with the wrongful death of a fetus. See Kuhnke v. Fisher, 210 Mont. at 119-20,
683 P.2d at 919 (interpreting wrongful death statute). In restricting its holding to wrongful
death for an unborn child, the court explicitly reserved deciding the question of prenatal inju-
ries to a fetus subsequently born alive. Id. at 120, 683 P.2d at 919. Thus, one may infer that
Montana does not recognize any type of recovery for prenatal injuries. Cf. Beal, supra note 8,
at 332 (lack of recent express rejection presumes recovery). Similarly, Nebraska confronted
the issue in a wrongful death context with an equal result. See Smith v. Columbus Community
Hosp., Inc., 222 Neb. at 780, 387 N.W.2d at 492 (inclusion of viable fetus in wrongful death
statute matter for legislature). The Supreme Court of Virginia likewise ruled that a stillborn
child was not a "person" within the meaning of the wrongful death statute and denied recov-
ery. Lawrence v. Craven Tire Co., 210 Va. at 140-41, 169 S.E.2d at 442; see also RESTATE-
MENT (SECOND) OF TORTS § 869(2) (1965) (no liability to stillborn fetus unless wrongful death
statute applicable).
As indicated above, some states have not confronted the specific issue of compensation for
prenatal injuries to a child born alive but addressed prenatal injuries in the context of wrongful
death actions. See infra notes 56 & 57 and accompanying text (listing jurisdictions deciding
prenatal injury issues in wrongful death actions). Although the focus of this Note primarily
concerns liability for prenatal injuries to a child subsequently born alive, it is necessary to
analyze those jurisdictions which recognize only a cause of action for wrongful death in order
to properly predict the course of the law respecting recovery for prenatal injuries. Infra notes
58 & 59 and accompanying text.
the reasoning of Bonbrest, thereby recognizing claims for prenatal inju-

ries.5 3 Of the states recognizing such a cause of action, ten states allow
recovery for injuries sustained from the point of conception.5 4 Thirteen
states strictly follow Bonbrest and allow recovery only for those injuries
incurred from the time of viability." Fifteen states recognize wrongful
death recovery for a viable fetus, all requiring that the fetus must have
been able to assert an action for personal injuries had it survived. 56 Mas-
53. See Beal, supra note 8, at 332 (majority of courts allow prenatal injury redress to child
born alive); see also infra notes 54-58 and accompanying text (identifying majority jurisdictions
permitting prenatal injury recovery).
54. Wolfe v. Isbell, 291 Ala. 327, 333-34, 280 So. 2d 758, 763 (1977); Simon v. Mullin, 34
Conn. Supp. 139, 147, 380 A.2d 1353, 1357 (1977); Day v. Nationwide Mut. Ins. Co., 328 So.
2d 560, 562 (Fla. Dist. Ct. App. 1976); Hombuckle v. Plantation Pipe Line Co., 212 Ga. 504,
504-05, 93 S.E.2d 727, 728 (1956); Bennett v. Hymers, 101 N.H. 483, 486, 147 A.2d 108, 110
(1958); Smith v. Brennan, 31 N.J. 353, 367, 157 A.2d 497, 504 (1960); Sinkler v. Kneale, 401
Pa. 267, 273-74, 164 A.2d 93, 96 (1960); Sylvia v. Gobeille, 101 R.I. 76, 80, 220 A.2d 222, 224
(1966); Delgado v. Yandell, 468 S.W.2d 475, 478 (Tex. Ct. App. 1971); see also RESTATE-
MENT (SECOND) OF TORTS § 869, comment d (1965) (recovery allowable for any injury sus-
tained after conception provided showing of tortious act and legal causation). But see Stern v.
Miller, 348 So. 2d 303, 308 (Fla. 1977) (denying recovery for wrongful death of stillborn).
California has created a statutory right of recovery for prenatal injuries to children con-
ceived but not yet born. CAL. CIV. CODE § 29 (West Supp. 1988). But cf. Wilson v. Kaiser
Found. Hosps., 141 Cal. App. 3d 891, 897, 190 Cal. Rptr. 649, 653 (1983) (live birth condition
precedent to accrual of legal rights).
55. Volk v. Baldazo, 103 Idaho 570, 573, 651 P.2d 11, 13-14 (1982); Damasiewicz v. Gor-
such, 197 Md. 417, 441, 79 A.2d 550, 561 (1951); Steggall v. Morris, 363 Mo. 1224, 1233, 258
S.W.2d 577, 581 (1953); Weaks v. Mounter, 88 Nev. 118, 121-22, 493 P.2d 1307, 1309 (1972)
(dicta); Woods v. Lancet, 303 N.Y. 349, 357, 102 N.E.2d 691, 695 (1951); Stetson v. Eas-
terling, 274 N.C. 152, 156, 161 S.E.2d 531, 534 (1968); Williams v. Marion Rapid Transit
Inc., 152 Ohio St. 114, 128-29, 87 N.E.2d 334, 340 (1949); Evans v. Olson, 550 P.2d 924, 927
(Okla. 1976); Mallison v. Pomeroy, 205 Or. 690, 697, 291 P.2d 225, 228 (1955); Fowler v.
Woodward, 244 S.C. 608, 612-13, 138 S.E.2d 42, 44 (1964); Shousha v. Matthews Drivurself
Serv., 210 Tenn. 384, 396, 358 S.W.2d 471, 476 (1962); Seattle-First Nat. Bank v. Rankin, 59
Wash. 2d 288, 291, 367 P.2d 835, 838 (1962); see also Bergstreser v. Mitchell, 577 F.2d at 25
(permitting recovery while interpreting Missouri law); Wendt v. Lillo, 182 F. Supp. 56, 62-63
(N.D. Iowa 1960) (predicting Iowa law based on overwhelming trend); White v. Yup, 85 Nev.
527, 534, 458 P.2d 617, 621 (1969) (sanctioning wrongful death action for viable fetus); cf.
Kelly v. Gregory, 282 A.D. 542, 545, 125 N.Y.S.2d 696, 698 (1953) (recovery from time of
conception). But see Endresz v. Friedberg, 24 N.Y.2d 478, 484-86, 248 N.E.2d 901, 905, 301
N.Y.S.2d 65, 70-71 (1969) (denying wrongful death action for stillborn). The court distin-
guished this claim from its decision in Woods solely on the basis of the stillborn fetus. Id. at
483, 248 N.E.2d at 903, 301 N.Y.S.2d at 68-69. The court then reiterated its recognition of the
legal right in prenatal injury law to be born unimpaired by mental and physical defects. Id. at
483, 248 N.E.2d at 903, 301 N.Y.S.2d at 68-69 (emphasis supplied). A stillborn child never
faces the burden of enduring life with the disabilities incurred by the child born alive but
defective. Id. at 483, 248 N.E.2d at 903, 301 N.Y.S.2d at 69.
56. Espadero v. Feld, 649 F. Supp. 1480, 1484 (D. Colo. 1986) (interpreting Colorado
law); Summerfield v. Superior Court, 144 Ariz. 467, 475, 698 P.2d 712, 724 (1985); Worgan v.
Greggo & Ferrara, Inc., 50 Del. 258, 260, 128 A.2d 557, 558 (1956); Britt v. Sears, 150 Ind.
App. 487, 497-98, 277 N.E.2d 20, 27 (1971); Hale v. Manion, 189 Kan. 143, 145-47, 368 P.2d
1, 3 (1962); Orange v. State Farm Mut. Auto Ins. Co., 443 S.W.2d 650, 651 (Ky. 1969); Danos
v. St. Pierre, 402 So. 2d 633, 639 (La. 1981); Verkennes v. Corniea, 229 Minn. 365, 371, 38
N.W.2d 838, 841 (1949); Rainey v. Horn, 221 Miss. 269, 283, 72 So. 2d 434, 439-40 (1954);
sachusetts and Michigan have extended recovery for wrongful death to a

previable fetus." Illinois recognizes a child's right of recovery for inju-
58
ries resulting from its mother's injuries sustained prior to conception.
In support of allowing recovery, courts proffer several justifications,
most of which simply counteract rationales for denying recovery. 59
States maintain that the mere absence of precedent should not bar recov-
ery where a wrong occurred.' Courts also attempt to reconcile long-
standing criminal and property law recognition of a separate existence
for an unborn child to whom others owe a duty of care. 6 ' These courts
argue that the law should properly concede equal recognition of separate
existence under tort law principles.62 Additionally, courts find difficulty
Salazar v. St. Vincent Hosp., 95 N.M. 150, 155, 619 P.2d 826, 828-29 (1980); Hopkins v.
McBane, 359 N.W.2d 862, 865 (N.D. 1984); Nelson v. Peterson, 542 P.2d 1075, 1077 (Utah
1975); Vaillancourt v. Medical Center Hosp., 139 Vt. 138, 141, 425 A.2d 92, 95 (1980); Bald-
win v. Butcher, 155 W. Va. 431, 437, 184 S.E.2d 428, 434 (1971); Kwaterski v. State Farm
Mut. Auto Ins. Co., 34 Wis. 2d 14, 22, 148 N.W.2d 107, 112 (1967); see also Rice v. Rizk, 453
S.W.2d 732, 735 (Ky. 1970) (viable fetus "person" within meaning of wrongful death statute
and entitled to damages); Pehrson v. Kistner, 301 Minn. 299, 302, 222 N.W.2d 334, 336 (1974)
(recovery of unborn viable child under wrongful death act clear); Occhipinti v. Rheem Mfg.
Co., 252 Miss. 172, 177, 172 So. 2d 186, 189 (1965) (reiterating rule of Rainey v. Horn permit-
ting compensation for wrongful death of viable child but declining to consider right of action
for death of non-viable fetus). But see Puhl v. Milwaukee Auto Ins. Co., 8 Wis. 2d 343, 356-
57, 99 N.W.2d 163, 169-71 (1956) (condemning viability distinction).
57. See Torigian v. Watertown News Co., 352 Mass. 446, 448-49, 225 N.E.2d 926, 927
(1967) (holding wrongful death recovery for injury to nonviable fetus); Womback v. Buch-
horn, 384 Mich. 718, 725, 187 N.W.2d 218, 222 (1971) (establishing action at common law for
any negligently inflicted prenatal injury); see also Dillon v. S.S. Kresge Co., 35 Mich. App.
603, 603, 192 N.W.2d 661, 661 (1972) (summary judgment reversal and remand founded on
Womback decision); cf Payton v. Abbott Labs, 386 Mass. 540, 562, 437 N.E.2d 171, 184-85
(1982) (recovery for plaintiff injured in utero from mother's ingestion of DES).
58. See Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 357, 367 N.E.2d 1250, 1255 (1977)
(allowing action by infant injured due to improper blood transfusion of mother eight years
prior to birth); cf Stallman v. Youngquist, 152 Ill. App. 3d 683, 694, 504 N.E.2d 920, 927
(1987) (surviving infant can maintain negligence action for prenatal injuries).
One must note that the United States Court of Appeals for the Eighth Circuit interpreted
Missouri law as allowing an infant to bring an action for preconception negligence. Berg-
streser v. Mitchell, 577 F.2d 22, 26 (8th Cir. 1978). Missouri state courts have yet to follow
this holding.
59. See infra notes 60-65 and accompanying text (advancing judicial justifications for
granting recovery).
60. See Bonbrest v. Kotz, 65 F. Supp. 138, 142 (D.D.C. 1946) (lack of precedent should
provide no refuge to one who tortiously harms another); Allaire v. St. Luke's Hosp., 184 Il1.
359, 368, 56 N.E. 638, 640 (1900) (Boggs, J., dissenting) (lack of precedent not crucial to
establish right of recovery), overruled by Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953);
see also Smith v. Brennan, 31 N.J. 353, 361, 157 A.2d 497, 500 (1960) (no longer lack of
precedent after Bonbrest).
61. See Amann v. Faidy, 415 Ill. 422, 430, 114 N.E.2d 412, 416 (1953) (common law long
recognized rights from expectation of birth under will and inheritance cases); Smith v. Bren-
nan, 31 N.J. at 363, 157 A.2d at 502 (1960) (unborn considered separate entity in criminal law
and property law regards fetus as being for beneficial interest purposes).
62. See, e.g., Keyes v. Construction Serv., Inc., 340 Mass. 633, 635, 165 N.E.2d 912, 914
of proof irrelevant in determining whether a cause of action should pro-

ceed.6 3 They reason that the likelihood of evidentiary problems in prena-
tal injury suits should no more prevent a claim than in any other
negligence action.' Recently, many courts have acknowledged a child's
right to be born with a sound mind and body.6 5
The issue of prenatal injuries has not arisen before the courts in six
states. 66 Forty-one jurisdictions expressly or implicitly acknowledge the
right of recovery for prenatal injuries, and thirteen of those jurisdictions
completely abandon the viability requirement. 67 Since 1982, four states
addressed the issue for the first time.6 8 Montana has impliedly denied
recovery. 69 Colorado and North Dakota have recognized wrongful death
recovery for a viable fetus,7" and Idaho has allowed an action for prena-
tal injuries inflicted from the point of viability. 71 Thus, it is safely pre-
sumed that a majority of the remaining six states will allow recovery for
prenatal injuries in accordance with the present trend.7 2 As counterpoint
to the fetus' apparent right to maintain an action against third party
(1960) (protection of unborn child in property and criminal enforcement requires recognition
of right not to be tortiously injured by another); Bennett v. Hymers, 101 N.H. 483, 485, 147
A.2d 108, 110 (1958) (illogical to allow rights of child en ventre sa mere respecting property
and criminal law yet deny such rights in tort); Williams v. Marion Rapid Transit, Inc., 152
Ohio St. 114, 118, 87 N.E.2d 334, 336 (1949) (impossible to reconcile rule noticing separate
existence under criminal law and completely rejecting it under tort law).
63. See Steggall v. Morris, 363 Mo. 1224, 1231, 258 S.W.2d 577, 580 (1953) (courts will
not refuse to entertain suits because of problems of proof); Smith v. Brennan, 31 N.J. at 365,
157 A.2d at 503 (mere hardship in proving fact insufficient to prohibit all attempts to prove it);
Woods v. Lancet, 303 N.Y. 349, 356, 102 N.E.2d 691, 695 (1951) (impermissible notion that
difficulty of proof can ever dissolve legal right).
64. See Woods v. Lancet, 303 N.Y. at 356, 102 N.E.2d at 695 (difficulty of proof neither
special to this particular type of action nor relevant in determining sufficiency of pleading).
65. See, e.g., Keyes v. Construction Serv., Inc., 340 Mass. at 635, 165 N.E.2d at 914 (natu-
ral justice requires legal right of child to be born unimpaired); Smith v. Brennan, 31 N.J. at
364, 157 A.2d at 503 (recognition of principle that infant has legal right to sound mind and
body required by justice); Sylvia v. Gobrielle, 101 R.I. 76, 78, 220 A.2d 222, 223 (1966) (le-
gally protected right to begin life unhampered by damage inflicted by another person's
negligence).
66. Alaska, Arkansas, Hawaii, Maine, South Dakota and Wyoming.
67. See supra notes 54, 57 & 58 and accompanying text (enumerating states recognizing
recovery from conception).
68. See infra notes 68-71 and accompanying text (classifying states recently forced to de-
cide prenatal injury law); cf. Beal, supra note 8, at 332 (ten states not confronted).
69. See Kuhnke v. Fisher, 210 Mont. 114, 120, 683 P.2d 916, 919 (1984) (withholding
recovery to unborn or stillborn child).
70. See Espadero v. Feld, 649 F. Supp. 1480, 1484 (D. Colo. 1986) (viable fetus' right to be
born alive comparable under equal protection analysis to newborn child's right to live); Hop-
kins v. McBane, 359 N.W.2d 862, 865 (N.D. 1984) (authorizing wrongful death action against
one tortiously causing death to viable fetus).
71. See Volk v. Baldazo, 103 Idaho 570, 573, 651 P.2d 11, 13-14 (1982) (allowing action
for prenatal injuries to viable fetus subsequently born alive).
72. See Beal, supra note 8, at 332 (absence of explicit modern rejection assumes majority of
states will allow recovery at least from point of viability).
19881 MATERNAL TORT LIABILITY
tortfeasors, this Note will now explore the present status of the parent-
child tort immunity doctrine in order to specifically assess the feasibility
of a child's claim against its mother.
III. PARENT-CHILD TORT IMMUNITY DOCTRINE
A. HistoricalOverview
The parent-child tort immunity doctrine is a relatively recent, judi-
cially created theory." The doctrine bars suits between parents and chil-
dren for intentional or personal torts.74 Legal commentators credit
enunciation of parental immunity in tort to three landmark cases known
as the "great trilogy"."
In Hewellette v. George,76 the Supreme Court of Mississippi refused to
allow a minor child's claim for civil redress from her mother for personal
injuries sustained as a result of malicious confinement in an insane asy-
lum and thereby created the parent-child immunity doctrine.7 7 Failing
to cite authority to support its position, the court stated that public pol-
icy and preservation of family harmony mandated denying suits between
unemancipated children and their parents.7" Similarly, in McKelvey v.
73. See Beal, supra note 8, at 333 (prior to creation in 1884 no reported cases barring
parent-child litigation).
74. See W. PROSSER supra note 35, § 122, at 865 (American courts adopted principle re-
fusing parent-child actions for intentional or negligent torts).
75. See, e.g., Beal, supra note 8, at 333 (recognition of parental immunity cases labeled
"great trilogy"); Comment, supra note 1, at 297 (doctrinal roots traced back to "Great Tril-
ogy"); Comment, Tort Actions Between Members of the Family-Husbandand Wife-Parent and
Child, 26 Mo. L. REV. 152, 182 (1961) [hereinafter Comment, Tort Actions] (American rule of
parent-child tort immunity based on great trilogy).
76. 68 Miss. 703, 9 So. 885 (1891).
77. Id. at 711, 9 So. at 887.
78. Id. The court further observed that state criminal laws provided adequate protection
from parental violence and the child could expect no more than a criminal shield. Id.
In the parent-child relationship, emancipation involves the renunciation of parental obliga-
tions as well as the surrender of the parental right to the care, custody, and earnings of the
child. BLACK'S LAW DICTIONARY 468 (5th ed. 1979). For purposes of this Note, the emanci-
pated-unemancipated child distinction is irrelevant because the child typically will bring suit
for prenatal injuries long before emancipation in order to minimize statute of limitation and
potential evidentiary problems. Most states, however, provide age disability exceptions to stat-
utes of limitation, thus removing that possible obstacle. See, e.g., ILL. REV. STAT. ch. 110, 13-
211 (Supp. 1988) (minor at time cause of action accures entitled to bring action within two
years after reaching age of 18); MASS. GEN. L. ch. 260, § 7 (1987) (minor may commence
action within limited time after disability removed); N.Y. CIv. PRAC. L. & R. § 208 (McKin-
ney Supp. 1988) (infancy extends commencement of action to three years after cessation of
disability). But see CAL. CIV. CODE § 29 (West 1982) (action of minor for prenatal injuries
must commence within six years from date of birth). Nonetheless, a child reserving filing suit
until the age of majority will inevitably incur evidentiary problems of causation absent thor-
oughly documented evidence prepared in anticipation of suit many years later. In any event,
this Note assumes that the child is unemancipated and subject to appropriate doctrinal
limitations.
SUFFOLK UNIVERSITY LAW REVIEW [V/ol. XXII:747
McKelvey, 79 the Supreme Court of Tennessee examined the parental im-

munity doctine.8 ° Relying entirely on Hewellette, the court denied a mi-
nor child recovery for personal injuries inflicted by her stepmother.8 1
The court cited no authority beyond Hewellette to enforce what it
phrased as a well-settled rule controlling parental-child relations. 82 In-
stead, the court adhered to the public policy reasoning of Hewellette.83
In Roller v. Roller, 4 the Supreme Court of Washington reversed a
lower court decision allowing a minor child to bring a civil action for
85
personal injuries against her father following his conviction for rape.
The court echoed the Hewellette with a discussion of possible imposition
of criminal penalties or custodial loss of the child for cruel and unusual
parental activity. 86 The court expanded the Hewellette rationale, how-
ever, by contributing reliance on the public interest in the financial wel-
fare of other family members, and fear that recovery by a minor child
might result, in the event of the child's death, in the parent inheriting the
very property previously taken.8 7
Following the great trilogy, courts strictly adhered to the parent-child
tort immunity rule. 88 Several major arguments developed from recogni-
tion and compliance with the doctrine. 89 Denial of recovery relied on
various justifications, including preservation of family harmony, 90 main-
79. 111 Tenn. 388, 77 S.W. 664 (1903).

80. Id. at 389, 77 S.W. at 664.
81. Id.
82. Id. at 393, 77 S.W. at 665.
83. Id. The McKelvy court based its decision on the common-law parental duty to main-
tain, protect, and educate children and the corresponding power and discretion necessary to
control that duty. Id. at 389, 77 S.W. at 664. A child's only remedy for abuse of this parental
power was founded in the criminal system. Id. Quoting Hewellette, the Supreme Court of
Tennessee affirmed policy interests in upholding familial and societal peace and denied the
child an alternative civil remedy. Id. at 392, 77 S.W. at 664.
84. 37 Wash. 242, 79 P. 788 (1905).
85. Id. at 242-47, 79 P. at 788-89.
86. Id. at 244-45, 79 P. at 789.
87. Id.
88. See, e.g., Luster v. Luster, 299 Mass. 480, 483, 13 N.E.2d 438, 440 (1938) (following
sound principle of parental immunity), overruled by Sorensen v. Sorensen, 369 Mass. 350, 339
N.E.2d 907 (1975), abrogated by Stamboulis v. Stamboulis, 401 Mass. 762, 519 N.E.2d 1299
(1988); Dunlap v. Dunlap, 84 N.H. 352, 372, 150 A. 905, 915 (1930) (parental immunity
imposed to protect family harmony); Matarese v. Matarese, 47 R.I. 131, 133, 131 A. 198, 199
(1925) (barring minor child's action for damages against father). See generally Comment, Tort
Actions, supra note 77, at 182-83 & n. 168 (fully listing and generally discussing jurisdictions
concurring with doctrine after great trilogy).
89. See, e.g., Beal, supra note 8, at 335 (enumerating reasons for preserving parent-child
tort immunity rule); Note, supra note 9, at 61-64 (discussing justifications for maintaining
parental protection); Comment, Tort Actions, supra note 75, at 187-93 (detailing courts' rea-
soning in support of rule).
90. See, e.g., Barlow v. Iblings, 261 Iowa 713, 718, 156 N.W.2d 105, 107-08 (1968) (do-
mestic tranquility and family unity ample reasons for maintaining doctrine), abrogatedby Tur-
tenance of parental authority, 91 access to criminal redress or removal of

the child from parental custody, 9 2 apprehension of depleting the family
exchequer, 93 reliance on the common-law doctrine of interspousal immu-
nity, 94 the possibility that the parent could inherit the child's judgment, 9
and fear of fraud and collusion. 96
B. Abrogation of the Parent-ChildTort Immunity Doctrine
Originally, the parent-child tort immunity doctrine completely barred

all suits involving parental conduct. 97 Courts found it increasingly diffi-
cult to apply the standard equitably, however, and frequently excepted
the parent from raising the doctrine as a defense. 98 Most of these excep-
ner v. Turner, 304 N.W.2d 786 (Iowa 1981); Luster v. Luster, 299 Mass. at 481, 13 N.E.2d at
439 (action would destroy family peace), overruled by Sorensen v. Sorensen, 369 Mass. 350,
339 N.E.2d 907 (1975), abrogated by Stamboulis v. Stamboulis, 401 Mass. 762, 519 N.E.2d
1299 (1988); Roller v. Roller, 37 Wash. at 243-44, 79 P. at 788 (rule prohibiting parent-child
suits based on societal interest in protecting family harmony).
At least one court perceives the family unity interest as exceeding any financial gain the
child may realize as a consequence of litigation. See Small v. Morrison, 185 N.C. 577, 584, 118
S.E. 12, 16 (1923) (home peace worth more than money).
91. See Barlow v. Iblings, 261 Iowa at 716, 156 N.W.2d at 107 (parental discipline and
control sufficient grounds to sustain policy and doctrine), abrogatedby Turner v. Turner, 304
N.W.2d 786 (Iowa 1981); Small v. Morrison, 185 N.C. at 584, 118 S.E. at 15 (preserving home
management of ultimate concern); Borst v. Borst, 41 Wash. 2d 642, 651, 251 P.2d 149, 153
(1952) (suit undermines parental control and discipline).
92. See Hewellette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891) (child adequately
shielded from parental abuse by state criminal laws); Matarese v. Matarese, 47 R.I. at 133, 131
A. at 199 (punishment available for parental violence through criminal proceedings); Roller v.
Roller, 37 Wash. at 244-45, 79 P. at 789 (cruel parent may suffer criminal penalties or forfeit
custody).
93. See Bulloch v. Bulloch, 45 Ga. App. 1, 7-8, 163 S.E. 708, 711 (1932) (child's recovery
may result in seizure of parent's estate to pay judgment); Roller v. Roller, 37 Wash. at 244-45,
77 P. at 789 (child's judgment detrimental to financial interests of other minor family
members).
94. See, e.g., Downs v. Poulin, 216 A.2d 29, 32 (Me. 1966) (parental immunity analogous
to interspousal immunity); McKelvey v. McKelvey, I11 Tenn. 388, 391, 77 S.W. 664, 665
(1903) (husband-wife analogy); Roller v. Roller, 37 Wash. at 245, 79 P. at 789 (action analo-
gous to coverture).
95. See Roller v. Roller, 37 Wash. at 244-45, 79 P. at 789 (upon death parent could inherit
child's judgment).
96. See, e.g., Barlow v. Iblings, 261 Iowa 713, 722, 156 N.W.2d 105, 110 (1968) (additional
justification of fraud and collusion), abrogated by Turner v. Turner, 304 N.W.2d 786 (Iowa
1981); Luster v. Luster, 299 Mass. 480, 483, 13 N.E.2d 438, 440 (1938) (parent-child proceed-
ing adversarial, yet susceptible to collusion), overruled by Sorensen v. Sorensen, 369 Mass. 350,
339 N.E.2d 907 (1975), abrogated by Stamboulis v. Stamboulis, 401 Mass. 762, 519 N.E.2d
1299 (1988); Parks v. Parks, 390 Pa. 287, 296, 135 A.2d 65, 71 (1957) (immunity rule deters
collusive action).
97. See supra notes 76-86 and accompanying text (establishing judicial basis for parental
immunity).
98. See, e.g., Emery v. Emery, 45 Cal. 2d 421, 431, 289 P.2d 218, 224 (1955) (sanctioning
claim by minor child for willful misconduct); Brennecke v. Kilpatrick, 336 S.W.2d 68, 73 (Mo.
tions arose from an erosion of the familial relationship. 99 Courts justified

the exceptions by observing that in the absence of a family unit, disrup-
tion of family harmony, overriding of parental authority, and risk of fa-
milial collusion become non-existent.1°° The most common exceptions
to the doctrine occurred when either the child or parent were deceased at
the commencement of the suit, where the child sustained injury during
the course of the parent's business activity, or where the parent intention-
ally harmed the child. °1 In each of these exceptions, courts reasoned
that the doctrine of immunity should only apply where parents act in
their parental capacity.12
In Goller v. White,' °3 the Supreme Court of Wisconsin abrogated the
parent-child tort immunity doctrine."° By allowing the action, the court
dispelled fears of disrupting family harmony because of a lawsuit. 0 5 Goi-
ler preserved the immunity rule, however, in situations where the alleged
negligence involves exercising parental authority and ordinary parental
discretion regarding the provision of food, clothes, housing, and other
necessary care. 106
Since 1963 and the Goller decision, forty states have abrogated the par-
ent-child tort immunity doctrine, either totally or partially, and now per-
mit the litigation of tort actions between parent and child.' 7 In support
1960) (child's suit against parental estate excepted); Dunlap v. Dunlap, 84 N.H. 352, 362, 150
A. 905, 910 (1930) (abandonment of parental relationship eliminates rationale for immunity).
99. See Emery v. Emery, 45 Cal. 2d at 431, 289 P.2d at 224 (no sound policy subserved by
extending parental immunity beyond reasonable parental discipline); Holodook v. Spencer, 36
N.Y.2d 35, 43, 324 N.E.2d 338, 342, 362 N.Y.S.2d 859, 865 (1974) (irrelevance to wrong and
termination of family relation form common thread to exception); Teramano v. Teramano, 6
Ohio St. 2d 117, 119, 216 N.E.2d 375, 377 (1966) (vacating parental relationship ceases immu-
nity protection), overruled by Kirchner v. Crystal, 15 Ohio St. 3d 326, 474 N.E.2d 275 (1984).
100. See Note, supra note 9, at 65 (without family relationship, risk of disruption and collu-
sion eliminated).
101. See, e.g., Beal, supra note 8, at 334 n.51 (acknowledging frequent exceptions allowing
recovery); Note, supra note 9, at 65-66 (explaining bases for granting recovery in certain ac-
tions); Comment, Tort Actions supra note 75, at 193-210 (detailing recognized exceptions to
parent-child tort immunity doctrine).
102. See Chaffin v. Chaffin, 239 Or. 374, 381, 397 P.2d 771, 774 (1964) (law protects inva-
sion of family tranquility only as far as parental duties are concerned), abrogated by Heino v.
Harper, 306 Or. 347, 759 P.2d 253 (1988).
103. 20 Wis. 2d 402, 122 N.W.2d 193 (1963).
104. Id. at 413, 122 N.W.2d at 198.
105. Id. at 410, 122 N.W.2d at 196. The court singled out the interspousal immunity anal-
ogy and based recovery on the fact that elimination of that rule supplied no negative effect on
the family unit. Id. The court then addressed an issue remarkably similar to one concerning
third party liability for prenatal injuries and reasoned that a child's common-law property and
contract rights should not be protected more fervently than the rights of his person. Id. at 410,
122 N.W.2d at 197.
106. Id. at 413, 122 N.W.2d at 198.
107. See, e.g., Nocktonick v. Nocktonick, 227 Kan. 758, 767, 611 P.2d 135, 148 (1980)
(abrogating parental immunity rule on case-by-case analysis); Briere v. Briere, 107 N.H. 432,
of allowing a child the opportunity to maintain a tort claim against its

parents, the courts most frequently deduce that the law should not deny
recovery to an injured child merely because of the child's relationship to
436, 224 A.2d 588, 590 (1960) (explicitly abandoning parent-child tort immunity doctrine);
Lee v. Comer, 224 S.E.2d 721, 725 (W. Va. 1976) (abrogating parent-child tort immunity rule
in automobile negligence cases).
Currently, ten states completely abandon the doctrine and allow recovery. Petersen v. City
of Honalulu, 51 Haw. 484, 487-88, 462 P.2d 1007, 1009 (1969); Stamboulis v. Stamboulis, 401
Mass. 762, 765, 519 N.E.2d 1299, 1301 (1988); Rupert v. Stienne, 90 Nev. 397, 404-05, 528
P.2d 1013, 1018 (1974); Briere v. Briere, 107 N.H. at 436, 224 A.2d at 590; Guess v. Gulf Ins.
Co., 96 N.M. 27, 29, 627 P.2d 869, 871 (1981); Nuelle v. Wells, 154 N.W.2d 364, 366-67 (N.D.
1967); Kirchner v. Crystal, 15 Ohio St. 3d 326, 330, 474 N.E.2d 275, 278 (1985); Falco v.
Pados, 444 Pa. 372, 378-79, 282 A.2d 351, 357 (1971); Elam v. Elam, 275 S.C. 132, 137, 268
S.E.2d 109, 112 (1980); Wood v. Wood, 135 Vt. 119, 122, 370 A.2d 191, 193 (1977); see also
Shearer v. Shearer, 18 Ohio St. 3d 94, 95, 480 N.E.2d 388, 390 (1985) (affirming rejection of
parental immunity doctrine); cf Beal, supra note 8, at 335-36 (setting forth status of doctrine
in 1984).
Additionally, twelve states have eliminated the rule, but explicitly limited their holdings to
the facts of each particular case. Hebel v. Hebel, 435 P.2d 8, 15 (Alaska 1967); Streenz v.
Streenz, 106 Ariz. 86, 89, 471 P.2d. 282, 285 (1970); Trevarton v. Trevarton, 151 Colo. 418,
422-23, 378 P.2d 640, 643 (1963); Dzenutis v. Dzenutis, 200 Conn. 290, 299-300, 512 A.2d
130, 136 (1986); Pedigo v. Rowley, 101 Idaho 201, 205, 610 P.2d 560, 564 (1980); Turner v.
Turner, 304 N.W.2d 786, 787-88 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. at 767,
611 P.2d at 148; Black v. Solmitz, 409 A.2d 634, 639-40 (Me. 1979); Kendall v. Sears, Roe-
buck & Co., 634 S.W.2d 176, 178 (Mo. 1982); Pullen v. Novak, 169 Neb. 211, 223-24, 99
N.W.2d 16, 25 (1959); Unah v. Martin, 676 P.2d 1366, 1370 (Okla. 1984); Merrick v. Sutter-
lin, 93 Wash. 2d 411, 416, 610 P.2d 891, 893 (1980); see also Farmers Ins. Group v. Reed, 109
Idaho 849, 854, 712 P.2d 550, 558 (1985) (intrafamily immunity abrogated up to limits of
insurance policy). But see Jackson v. Johnson, 9 Conn. App. 290, 291 n.3, 518 A.2d 666, 666-
67 n.3 (1986) (denying modification of doctrine based solely on fact insurance available); Wag-
ner v. Smith, 340 N.W.2d 255, 257 (Iowa 1983) (denying recovery to child injured by father's
negligent supervision); Hooper v. Clements Food Co., 694 P.2d 943, 945 (Okla. 1985) (denying
recovery to child from parent but allowing child to recover damages from employer for paren-
tal negligence during scope of employment).
Georgia apparently denies recovery but allows a child to bring an action against its parent
for willful and wanton acts of the parent. See Coleman v. Coleman, 157 Ga. App. 533, 534,
278 S.E.2d 114, 114-15 (1981) (barring unemancipated child's suit against father for injuries
from automobile accident). Colorado also extends liability to include intentional harm. See
Horton v. Reaves, 186 Colo. 149, 156, 526 P.2d 304, 308 (1974) (doctrine fails to protect
against willful and wanton acts).
Seven jurisdictions have revoked parental immunity only in the area of automobile negli-
gence. Williams v. Williams, 369 A.2d 669, 673 (Del. 1976); Ard v. Ard, 414 So. 2d 1066,
1070 (Fla. 1982); Stallman v. Youngquist, 152 Ill. App. 3d 683, 692, 504 N.E.2d 920, 925-26
(1987); Transamerica Ins. Co. v. Royle, 656 P.2d 820, 824 (Mont. 1983); Silva v. Silva, 446
A.2d 1013 (R.I. 1982); Smith v. Kauffman, 212 Va. 181, 186, 183 S.E.2d 190, 194 (1971); Lee
v. Comer, 224 S.E.2d at 725.
North Carolina provides recovery in automobile negligence actions by statute. N.C. GEN.
STAT. § 1-539.21 (1983). But cf Lee v. Mowett Sales Co., 342 S.E.2d 882, 884 (N.C. 1986)
(extending relief from parent-child tort immunity doctrine to malicious acts but refusing to
abolish it).
Six states faithfully follow Goller and hence retain immunity in two well-defined situations.
Rigdon v. Rigdon, 465 S.W.2d 921, 923 (Ky. 1971); Plumley v. Klein, 388 Mich. 1, 8, 199
N.W.2d 169, 172-73 (1972); Foldi v. Jeffries, 93 N.J. 533, 546, 461 A.2d 1145, 1152 (1983);
Winn v. Gilroy, 296 Or. 718, 732-33, 681 P.2d 776, 785 (1984); Felderhoff v. Felderhoff, 473
the tortfeasor 10 8 Alternatively, courts conclude that a child's personal

rights are as worthy of protection as its other common law claims.' ° 9
IV. MATERNAL LIABILITY TO AN UNBORN CHILD
In order for a child's negligence action against its mother for prenatal
injuries to stand, courts must abolish parent-child tort immunity and
establish that a mother owes a duty of care to her fetus." ° A mother's
conduct toward her unborn child during the course of her pregnancy
plays a significant role in the development of the fetus.' " If the law is to
grant a maternal duty to an unborn child, it must, at the same time,
regulate the ability of a pregnant woman to independently control her
S.W.2d 928, 933 (Tex. 1971); Goller v. White, 20 Wis. 2d 402, 413, 122 N.W.2d 193, 198
(1963).
Two states support a reasonable parent standard in assessing liability and immunity. See
Gibson v. Gibson, 3 Cal. 3d 914, 921, 479 P.2d 648, 653, 92 Cal. Rptr. 288, 293 (1971) (rea-
sonableness of parental conduct constitutes proper inquiry); Anderson v. Stream, 295 N.W.2d
595, 601 (Minn. 1980) (adopting California reasonable standard approach).
New York has established a duty rule in determining immunity. See Gelbman v. Gelbman,
27 N.Y.2d 434, 439, 245 N.E.2d 192, 194, 297 N.Y.S.2d 529, 532 (1969) (abolishing in-
trafamily immunity permits recovery only after establishment of liability); see also Holodock v.
Spencer, 36 N.Y.2d 35, 50, 324 N.E.2d 338, 346, 364. N.Y.S.2d 859, 871 (1974) (law will not
sanction activity merely because of parent-child relationship where duty ordinarily owed).
Eight minority jurisdictions remain in the shadow of Hewellette and assert the parent-child
tort immunity doctrine as an absolute bar to recovery. Owen v. Auto Mut. Indemnity Co., 235
Ala. 9, 12, 177 So. 133, 136 (1937); Thomas v. Innon, 268 Ark. 221, 223, 594 S.W.2d 853, 854
(1980); Vaughan v. Vaughan, 161 Ind. App. 497, 500, 316 N.E.2d 455, 457 (1974); Frye v.
Frye, 305 Md. 542, 565, 505 A.2d 826, 838 (1986); Durham v. Durham, 227 Miss. 76, 85, 85
So. 2d 807, 808-09 (1956); Barranco v. Jackson, 690 S.W.2d 221, 222 (Tenn. 1985); Ball v.
Ball, 73 Wyo. 29, 56-57, 269 P.2d 302, 314 (1954); see also Hill v. Giordano, 447 So. 2d 164,
164 (Ala. 1984) (holding abolition of parental immunity doctrine prerogative of legislature).
Lousiana acknowledges the parent-child tort immunity doctrine as a procedural bar to suit by
statute. LA. REV. STAT. ANN. § 9:571 (West Supp. 1988).
South Dakota and Utah have yet to confront the issue of parental immunity.
108. See, e.g., Hebel v. Hebel, 435 P.2d at 14 (child should be permitted redress for negli-
gent personal injury); Sorensen v. Sorensen, 369 Mass. at 359, 339 N.E.2d at 912 (children
entitled to same right of legal redress for harm done to them as others), abrogatedby Stambou-
lis v. Stamboulis, 401 Mass. 762, 519 N.E.2d 1299 (1988); Briere v. Briere, 107 N.H. at 434,
224 A.2d at 590 (minor allowed same right of remedy as any individual).
109. See, Hebel v. Hebel, 435 P.2d at 15 (illogical to sanction property actions but deny
personal injury actions to minors); Streenz v. Streenz, 106 Ariz. at 88, 471 P.2d at 284 (long
permitted practice of child suing parent in property or contract undermines rationale for im-
munity); Briere v. Briere, 107 N.H. at 436, 224 A.2d at 591 (impossible to comprehend jeop-
ardizing family harmony more in negligence action than in contract, assault, or property
claims and such distinction would perpetuate irreconcilable decisions); Goller v. White, 20
Wis. 2d at 410, 122 N.W.2d at 197 (difficult to perceive law protecting property rights more
zealously than personal rights).
110. See infra notes 174-87 and accompanying text (setting forth duty of care as element of
negligence cause of action).
111. See infra notes 113-70 and accompanying text (analyzing medical literature and
mother's affirmative actions in causing congenital defects to unborn child).
2
own body. 1
A. The Mother's Role in Causing Congenital Injuries

Congenital defects can occur as a result of heredity, environmental fac-
tors, or a complex combination of both." 3 During the gestational pe-
riod, 4 a strong blow to the mother's abdomen or maternal exposure to
an external teratogenic agent subsequently transfused to the fetus
through the placenta may injure the fetus.' Although a distinct physio-
logical individual, the fetus' receptivity to its mother's anatomic and met-
abolic environment is critically important at every stage of development
to ensure a healthy child." 6
1. Direct Impact
Although the womb adequately protects the fetus, direct physical im-
pact occurring by virtue of perforation or puncture of the maternal ab-
dominal wall may seriously affect the unborn infant." 7 Such trauma to
the unborn child may stimulate fetal death, prematurity, interference
with respiratory processes, and emotional neonatal distress., 8 A preg-
nant woman should thus refrain from activities with a high risk of bodily
impact by consciously choosing between control of her activity and the
risk such actions may have on her unborn child." 9
112. See infra notes 223-25 and accompanying text (maternal duty to fetus versus affirma-
tive preventive action).
113. See K. MOORE, THE DEVELOPING HUMAN 140 (3d ed. 1982) (attributing congenital
anomalies to genetic or environmental factors, or both); R. SNELL, CLINICAL EMBRYOLOGY
FOR MEDICAL STUDENTS 397 (3d ed. 1983) (most malformations result from interaction of
heredity and environment); Note, Impact, supra note 45, at 555 (discussing causes of congeni-
tal defects); accord Gordon, The Unborn Plaintiff,63 MICH. L. REV. 579, 603 (1965) (environ-
ment critical in etiology of malformations).
114. See THE MOSBY MEDICAL ENCYCLOPEDIA 310 (1985) (defining gestation period as
time from fertilization until birth).
115. See infra notes 117-18 and accompanying text (discussing direct physical trauma ef-
fects on fetus); See Gordon, supra note 113, at 611 (teratogens primarily transferred trans-
placentally); Note, Impact, supra note 45, at 555 (environment may adversely affect fetus); see
also infra notes 120-70 (assessing fetus' susceptibility to teratogens).
A teratogen is any substance that induces or increases the incidence of one or more develop-
mental anomalies in a fetus. THE MOSBY MEDICAL ENCYCLOPEDIA 712 (1985); see K.
MOORE, supra note 113, at 153 (defining teratogen).
116. See Amendt, The Right to Be Well Born, J. LEGAL MED., Nov.-Dec. 1974, 25, 25 (fetal
response to maternal environment essential to ensure proper extrauterine performance).
117. See 5B LAWYERS' MEDICAL CYCLOPEDIA § 37.16, at 79 (3d ed. 1986) (uterine rup-
ture may occur after abdominal blow or fall with severe fetal consequences); Gordon, supra
note 113, at 621 (direct physical injury may spur miscarriage or stillbirth).
118. See Gordon, supra note 113, at 622-25 (elaborating on specific injuries associated with
physical trauma).
119. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 256 (pregnant woman
should avoid exercise resulting in excessive fatigue or risk of harm to unborn child); J. WILL-
SON, E. CARRINGTON & W. LEDGER, OBSTETRICS & GYNECOLOGY 267 (1983) (pregnancy
2. Teratogenic Exposure
Generally, the formative period of the developing child is separated
into three stages: the ovum, the embryo, and the fetus. 2 ' These devel-
opmental periods are commonly divided into three calendar month terms
known as trimesters.' 2 1 During each level of maturation, the child un-
dergoes numerous uniform and marked physiological changes. 122 The
fetus' susceptibility to adverse environmental factors and subsequent con-
genital malformations depends on the exact state of tissue differentiation
taking place when the teratogen is introduced.123 The greatest danger of
congenital defects to the fetus, however, exists during the first stage of
development because most dynamic organ structuring and growth tran-
124
spires during this period.
Nutrition is perhaps the single most influential environmental factor in
the span of fetal life. 125 An inadequate maternal diet is highly deleterious
to the unborn child because normal fetal progression depends, in part, on
proper protein, mineral, vitamin, and caloric consumption. 126 Studies in-
dicate that an insufficient diet is associated with increased incidence of
fetal mortality and prematurity, congenital defects in infants, and preg-
nancy complications in the mother. 127 Substandard nutrition during
pregnancy, particularly a protein-deficient diet, most commonly impairs
decreases agility forcing pregnant women to assess risk of injury connected with strenuous
activity). When a traumatic incident occurs, both mother and child must undergo careful
examination for intra-abdominal or vaginal bleeding indicative of uterine rupture. 5B LAW-
YERS' MEDICAL CYCLOPEDIA, supra note 117, § 37.16, at 79.
120. 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 120, § 37.2b, at 10.
121. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 246. These authors
warn, however, that such designation creates major problems because precise knowledge of
fetal age is imperative for ideal obstetrical management. J. PRITCHARD, P. MACDONALD &
N. GANT, supra note 2, at 246. They further suggest that the appropriate measurement is
weeks of gestation completed. Id.
122. 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 117, at §§ 37.2b, at 10 & 37.5a, at
17.
123. See K. MOORE, supra note 113, at 151-52 (critical period varies with development of
particular tissue); Amendt, supra note 116, at 25 (stage of tissue differentiation determines
susceptibility to anomaly).
124. See, e.g., 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 117, § 37A.9, at 207-08
(most critical effect of teratogen during first trimester); K. MOORE, supra note 113, at 151
(embryonic development most easily affected from 15th to 60th day); E. SANDBERG, SYNOPSIS
OF OBSTETRICS 124 (10th ed. 1978) (first trimester exposure presents greatest danger of con-
genital malformations).
125. See E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 313 (emphasizing importance
of optimal maternal nutrition).
126. See E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 313 (fetal development depen-
dent on proper nutritional intake); J. WILLSON, E. CARRINGTON & W. LEDGER, supra note
119, at 265 (fetal growth influenced by caloric content of maternal diet).
127. See Osofsky & O'Connell, NutritionalFactors Affecting Fetal Growth and Subsequent
Infant Development in TEXTBOOK OF PEDIATRIC NUTRITION 1, 6-7 (R. Suskind ed. 1981)
(examining various studies evaluating effects of differential nutrition on fetal health).
brain development. 2 8 If the mother fails to supply proper nutrition to

the fetus through sufficient dietary balance, the child may obtain neces-
sary growth ingredients by depleting maternal tissue reserves.' 29 The
woman, therefore, must carefully adapt her nutritional intake to ensure
maintenance of her own bodily tissues as well as proper growth and de-
velopment of her baby.' 3 0
Medical literature demonstrates a strong nexus between the voluntary
3
ingestion of drugs during pregnancy and congenital malformations.1 '
The maternal placenta functions merely as a filter to teratogenic agents,
and not as a barrier, leaving the fetus virtually unprotected from the
mother's introduction of drugs into her system. 132 Prescription, non-pre-
scription, or illegal drugs all may harm the fetus.' 3 3 Indeed, common
aspirin is known to cause nervous system damage, liver and kidney
anomalies, and a bleeding tendency.' 34 Antihistamines, cold medica-
tions, and cough syrup may spur skeletal deformities as well as liver and
brain damage. 13 Seemingly harmless antacids and laxatives taken dur-
ing the gestational period may spawn permanent kidney problems and
136
brain damage.
Use of more powerful drugs during fetal development may cause se-
vere malformations.1 37 Sedatives, tranquilizers, heroin, and morphine all
may result in physical and mental anomalies. 13 1 Infants born to heroin
addicted women usually manifest signs of withdrawal upon birth, experi-
128. See id. at 15 (noting studies indicate brain abnormalities in nutritionally deprived in-
fants); J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 265-66 (inadequate
protein intake may alter brain development).
129. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 266.
130. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 266 (inadequate diet
will provide necessary nutrients to fetus at expense of maternal tissues).
131. See E. SANDBERG, supra note 124, at 117 (vulnerability of fetus to ingested drugs re-
peatedly demonstrated).
132. E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 383; Gordon, supra note 113, at
611.
133. See Schenckel & Vorherr, Non-PrescriptionDrugs During Pregnancy: PotentialTerato-
genic and Toxic Effects Upon Embryo and Fetus, 12 J. REPRODUCTIVE MED. 27 (1974) (dis-
cussing effects of over-the-counter drugs, prescription and non-prescription drugs).
134. See, e.g., J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 260 (discourag-
ing aspirin use during pregnancy); T. SADLER, LANGMAN'S MEDICAL EMBRYOLOGY 115 (5th
ed. 1985) (indicating evidence of harmful fetal development from maternal aspirin ingestion);
Schenckel & Vorherr, supra note 133, at 32, 34 (listing teratogenic effects of aspirin ingestion
on fetus).
135. Schenckel & Vorherr, supra note 133, at 32-34.
136. Schenckel & Vorherr, supra note 133, at 33.
137. See infra notes 138-43 and accompanying text (consequences of maternal drug use).
138. See E. SANDBERG, supra note 124, at 117-18 (listing various harmful drugs and their
effects). The fetus is especially vulnerable to sedatives and tranquilizers because they rapidly
permeate the placental filter and enter fetal circulation causing possible spontaneous abortion
in the first trimester, and circulatory failure and newborn respiratory depression if absorbed
later in development. Schenckel & Vorherr, supra note 133, at 33. Morphine use during preg-
ence restlessness, tremors, and convulsions.1 39 Withdrawal often causes

prematurity or mortality because of the newborn's inability to cope with
the addiction and resultant suffering from intense and extreme dis-
tress."0 If medical personnel fail to recognize and thus do not treat the
withdrawal symptoms, the child will probably die.' 4 ' Those neonates
surviving the withdrawal period are frequently confronted with in-
trauterine growth retardation and must then overcome obstacles associ-
ated with that status. 142 If the child withstands the initial problems of
withdrawal and reduced birth weight, it must further endure distur-
bances in sleep, attention span, and activity level, and may suffer contin-
ued irritability throughout most of its early childhood life.' 4 3
Additionally, a mother's excessive use of alcohol during pregnancy
may produce a characteristic pattern of congenital malformations and
maldevelopment commonly referred to as Fetal Alcohol Syndrome." 4
Heavy alcohol consumption during the first trimester commonly fosters
severe congenital malformations. 14 Continued alcohol use during preg-
nancy greatly affects infant weight, ultimately leading to prenatal or post-
nancy may lead to respiratory distress, addiction, and death of the neonate. E. SANDBERG,
supra note 124, at 118.
139. Wilson, Desmond & Verniaud, Early Development of Infants of Heroin-Addicted
Mothers, 126 AM. J. DISEASED CHILDREN 457, 458, 462 (1973).
140. Zelson, Infant of the Addicted Mother, 288 NEW ENG. J. MED. 1393, 1393 (1973).
141. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 788-89.
142. See E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 383 (associating maternal
heroin use with fetal growth retardation); Wilson, Desmond & Verniaud, supra note 139, at
461 (higher incidence of in utero growth retardation among children of heroin-addicted
mothers well demonstrated). Intrauterine growth retardation generally includes any newborn
infant whose birth weight is below the tenth percentile for gestational age. K. MOORE, supra
note 113, at 104; J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 757; E.
SANDBERG, supra note 127, at 308-09. Growth retardation significantly increases the risk of
fetal death and neonatal mortality. See J. PRITCHARD, P. MACDONALD & N. GANT, supra
note 2, at 757 (remarkable fetal danger with growth retardation); E. SANDBERG, supra note
124, at 309 (low birth weight infants account for approximately 70% of neonatal mortality).
Moreover, studies indicate a correlation between intrauterine growth retardation and long-
term growth and developmental defects. E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at
378.
143. See Wilson, Desmond & Verniaud, supra note 139, at 459 (behavioral disturbances and
abnormalities identified in 64% of children observed after one year or more).
144. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 259; 5B LAWYERS'
MEDICAL CYCLOPEDIA, supra note 117, § 37A.9(A), at 211. Fetal Alcohol Syndrome is a
term used to designate the distinctive pattern of structural congenital defects resulting from
abuse of alcohol by women during pregnancy. 5B LAWYERS' MEDICAL CYCLOPEDIA, supra
note 117, § 37A.9(A), at 211. The term encompasses a spectrum of abnormalities and
problems, including growth deprivation, mental retardation, and microencephaly (facial mal-
formation). E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 381.
145. 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 117, § 37A.9(A), at 212. The most
striking malformation of Fetal Alcohol Syndrome children involves a distinctive facial appear-
ance. E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 381. The central facial structures are
flattened with an upturned nose and narrow eyes. Id. at 381-82.
natal growth retardation. 14 6 Adverse effects of alcohol on growth,

however, appear most traumatic during the third trimester. 147 More-
over, those children overcoming the syndrome in the growth processes
may further encounter physical retardation, neurological dysfunction,
cardiovascular defects, craniofacial, and limb deformities. 4 The effect
of alcohol on the unborn child is usually so grave that various medical
literature advises physicians to discourage pregnancy until confirmation
49
of the successful elimination of the women's drinking problem.'
Women who smoke cigarettes similarly incur the risk of harming their
unborn child.' 0 The antepartal effects of cigarette smoking have been
generally known for some time.15 1 Cigarette smoking reduces the oxygen
level in the mother's circulatory system which, in turn, decreases the ox-
ygen supply flowing to the fetus. 152 Deprivation of oxygen impairs fetal
146. E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 382. Growth retardation associ-
ated with Fetal Alcohol Syndrome is of great concern because it commonly leads to decreased
coordination and motor function, poor postnatal growth, and heightened irritability, dis-
tractability, and tremors. Id.; see also Note, Maternal Substance Abuse: The Need to Provide
Legal Protectionfor the Fetus, 60 S. CAL. L. REV. 1209, 1212-13 (1987) (discussing character-
istic growth retardation effect of Fetal Alcohol Syndrome).
147. See Note, supra note 146, at 1213 (growth retardation defects most dramatic during
third trimester alcohol consumption). Studies further indicate that suspending alcohol con-
sumption prior to the third stage of development may significantly reduce growth retardation.
Id.
148. See, e.g., E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 382 (more than 40% of
children born to alcoholic mothers exhibit structural defects); J. PRITCHARD, P. MACDONALD
& N. GANT, supra note 2, at 259 (pattern of cardiac, craniofacial, and limb abnormalities
encountered in children of alcoholic women); Note, supra note 146, at 1214-16 (discussing
central nervous system disorders, craniofacial and other bodily anomalies attributable to Fetal
Alcohol Syndrome); see also 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 117,
§ 37A.9(A), at 211 (listing primary anomalies of Fetal Alcohol Syndrome).
149. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 259; J. WILLSON, E.
CARRINGTON & W. LEDGER, supra note 119, at 268; 5B LAWYERS' MEDICAL CYCLOPEDIA,
supra note 117, § 37A.9(A), at 212. Presently, no exact correlation exists between the level of
alcohol consumed and fetal maldevelopment. J. WILLSON, E. CARRINGTON & W. LEDGER
supra note 119, at 268. Abnormalities, however, appear dose related; an elevation in maternal
alcohol intake increases the risk and extent of fetal involvement. 5B LAWYERS' MEDICAL
CYCLOPEDIA, supra note 117, § 37A.9(A), at 212. Peak blood alcohol concentration is thus a
significant tetrogenic determinant requiring medical alert to each patient to refrain from ex-
ceeding two drinks per day, regardless of whether it is the only alcohol consumed per week,
month, or year. Id.
150. Meyer & Tonascia, MaternalSmoking, Pregnancy Complications, and PerinatalMor-
tality, 128 AM. J. OBSTET. GYNECOLOGY 494, 494 (1977) (studies show direct correlation
between maternal cigarette intake, reduced birth weight, and increased mortality rate); see also
supra note 135 and accompanying text (discussing harms associated with low birth weight
babies).
151. See Wertelecki, Hoff & Zansky, Maternal Smoking: Greater Effect on Males, Fetal
Tobacco Syndrome?, 35 TERATOLOGY 317, 320 (1987) (adverse fetal effects of smoking during
pregnancy well documented).
152. See Meyer & Tonascia, supra note 150, at 500 (cigarette smoking introduces carbon
monoxide into bloodstream which reduces its oxygen-carrying capacity).
growth resulting in low birth weight babies. 153 Reduced weight infants
associated with tobacco abuse run the risk of respiratory distress, Sudden
Infant Death Syndrome, and developmental deficiencies.1 5 4 Medical
literature indicates a direct correlation between the amount of maternal
tobacco intake and the incidence of fetal growth impairment. 5' Indeed,
a single cigarette smoked by a pregnant woman may disrupt the fetal
heartbeat thus adversely affecting the child.' 56
Introduction of certain infectious diseases into the fetal environment
not only cause congenital defects but are accountable for approximately
one-fifth of all neonatal deaths. 15 7 The transmission of rubella to the un-
born child, for example, is connected with a flurry of congenital defects,
depending on the timing of viral invasion and the stage of fetal growth.' 5
Early infection often spurs spontaneous abortion. 5 9 Later prenatal ex-
posure to rubella is linked to central nervous system defects, heart dis-
ease, visual and auditory defects, chromosomal abnormalities, and
retarded fetal growth."6 Prenatal exposure to other common diseases
such as mumps, chicken pox, and scarlet fever, carry similar destructive
153. See Meyer & Tonascia, supra note 150, at 501 (indicating correlation between mater-
nal-fetal oxygen exchange and birth weight).
154. Note, supra note 146, at 1218.
155. See J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 757 (increase in
number of cigarettes smoked escalates impairment); Wertelecki, Hoff & Zansky, supra note
151, at 317 (numerous investigations substantiate adverse effect of cigarette smoking dose-
related theory).
156. Note, supra note 9, at 74.
157. E. SANDBERG, supra note 124, at 548.
158. See, e.g., E. PAGE, C. VILLEE & D. VILLEE, supra note 6, at 209 (earlier rubella con-
tracted greater risk of fetal maldevelopment); T. SADLER, supra note 137, at 110 (stage of
development at which infection occurs establishes type of abnormality); 5B LAWYERS' MEDI-
CAL CYCLOPEDIA, supra note 117, § 37.1 la, at 56 (rubella most devastating during first 12
weeks of pregnancy). Studies calculate that during the first four months of pregnancy, infec-
tion may produce congenital malformations in as many as 75% of infants. J. WILLSON, E.
CARRINGTON & W. LEDGER, supra note 119, at 272.
Although knowledge of perinatal transmission of Acquired Immunodeficiency Syndrome
(AIDS) is incomplete, the Center for Disease Control reports a maternal transfer rate of 65%.
Sachs, Tuomala & Frigoletto, Acquired Immunodeficiency Syndrome: Suggested Protocolfor
Counseling and Screening in Pregnancy, 70 OBSTETRICS & GYNECOLOCY 408, 408 (1987).
Neonates infected in utero become symptomatic with AIDS-related complex or AIDS within a
few months to two years. Id. Even if the fetus is unaffected, the newborn may be inflicted with
the disease through breast feeding. Id. at 410.
159. See T. SADLER, supra note 134, at Ill (fetal death may follow infection during first
eight weeks of pregnancy).
160. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 786-87; T. SADLER,
supra note 134, at 110- 11. Some birth defects, such as mental retardation and dental abnor-
malities, do not develop until the child is two to four years of age. T. SADLER, supra note 134,
at I 11. Furthermore, infants born with congenital rubella may carry the infection for many
months thus posing a threat to other infants in the hospital nursery as well as to susceptible
adults. J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 787.
agents.161 Infliction of these diseases early in pregnancy produces serious

developmental derangement, particularly when contracted within the
first twelve weeks of pregnancy. 62 Because of the potential hazards of
infectious disease to a developing fetus, medical authority strongly urges
63
women of child-bearing years to seek testing and immunization.
Untreated sexually transmitted diseases are further associated with in-
trauterine fetal death and congenital anomalies including central nervous
system impairment, blindness, and psychomotor dysfunction.164
Although congenital syphilis is not as prevalent in society as in previous
years, exposure to the condition during pregnancy is connected with
deafness, mental retardation, and fetal infection. 65 Doctors can success-
fully detect and treat maternal syphilis during pregnancy, thereby pro-
tecting the unborn child. 166 Conversely, infliction of maternal genital
herpes is devastating and accountable for spontaneous abortion, prema-
ture labor, serious central nervous system impairment, and neonatal
herpes. 167 The virus frequently attacks the infant's central nervous sys-
tem resulting in fetal death shortly after birth and transmission of the
virus.' 68 Because the child is exposed to maternal herpes during delivery
or from placental transference, the disease is not effectively treatable in
161. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 274.

162. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 274. Infection of
mumps during pregnancy occasions an approximate 15% incidence of spontaneous abortion
and fetal death, with similar increase in incidence of congenital defects. J. WILLSON, E. CAR-
RINGTON & W. LEDGER, supra note 119, at 274. Developmental anomolies associated with
exposure to chicken pox include limb defects, low birth weight, and skin scars. J. WILLSON, E.
CARRINGTON & W. LEDGER, supra note 119, at 274. Finally, although penicillin may reduce
the seriousness of malformations attributable to scarlet fever, spontaneous abortion frequently
occurs. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 274.
163. See J. PRITCHARD, P. MACDONALD & N. GANT, supra note 2, at 786 (recommending
approach to rubella prevention); J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119,
at 273 (proposing rubella testing as part of every premarital and prepregnancy examination).
As a general rule, however, women should avoid immunization during pregnancy. J. WILL-
SON, E. CARRINGTON & W. LEDGER, supra note 119, at 275. Moreover, therapeutic abortion
is justifiable upon conclusive evidence of rubella infection during the first and second trimes-
ters of pregnancy. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 272.
164. See infra notes 165-71 (discussing effects of syphilis and herpes viruses).
165. See K. MOORE, supra note 113, at 160 (maternal exposure during pregnancy usually
causes serious congenital malformations).
166. See 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 117, § 37.1 lc, at 56-57 (mater-
nal treatment with penicillin greatly reduces congenital syphillis).
167. 5B LAWYERS' MEDICAL CYCLOPEDIA, supra note 117, § 37.1 ld, at 57; E. SANDBERG,
supra note 124, at 550-552.
168. See Whitley, Neonatal Herpes Simplex Virus Infections, 31 J. REPRODUCTIVE MED.
426, 428 (1986) (mortality frequent six months after diagnosis of disseminated herpes simplex
virus). Infant mortality due to herpes is directly linked with the particular virus classification.
Id. at 430. Disseminated infection, even with treatment, carries a mortality rate in excess of
60%. Id. Infection localized to the central nervous system, while responsive to medication, is
associated with a mortality rate of 11-15%. Id.
utero as is syphilis.169 An expecting women's failure to advise her obste-

70
trician of the known condition may result in fatal fetal consequences.'
B. The Standard of Care
Currently, no confirmed standard of care exists detailing a mother's

duty to her unborn child.' 7 ' Third-party tortfeasors, however, may not
inflict injury upon a fetus without incurring tort liability.' 72 Because the
fetus completely depends upon its mother for nourishment and life, com-
mentators suggest that the law should hold a pregnant woman to a simi-
73
lar standard of care with respect to her unborn child.
To maintain an action for negligence against its mother, a child must
establish a legal duty requiring the mother to conform to a certain stan-
74
dard of conduct for protecting the fetus against unreasonable risks,' a
1 75 176 77
breach of this duty, causation, and damage or actual loss.1 In de-
fining the standard of care, courts generally will find a duty where rea-
sonable people would recognize it and agree that it exists.' 7 1 Courts may
not arbitrarily create a legal duty, however, solely to avoid an unpleasant
result in a particular case. 179 Some relationship between the parties must
exist in order for a duty to arise.18 0 In third-party prenatal injury cases,
the right to be born free from bodily defects provides the requisite
relationship. 8 '
Negligence is conduct which falls below the legal standard created to
169. See T. SADLER, supra note 134, at 112 (infection usually acquired near delivery time);
Whitley, supra note 168, at 427 (virus may be transmitted in utero during delivery or
postnatally).
170. See Whitley, supra note 168, at 432 (life-threatening nature of neonatal herpes simplex
virus mandates careful medical observation of possible symptoms); see also 5B LAWYERS'
MEDICAL CYCLOPEDIA, supra note 117, § 37.11d, at 57 (neonatal herpes virus extremely
lethal).
171. See Note, Recovery for PrenatalInjuries: The Right of a Child Against Its Mother, 10
SUFFOLK U.L. REV. 582, 605 (1976) (no established standard of care). But see infra notes 188-
95 and accompanying text (indicating inklings of some standard of conduct evolving).
172. See supra notes 52-72 and accompanying text (analyzing liability of third-party
tortfeasors for prenatal injuries).
173. See Beal, supra note 8, at 363 (child entitled to legal determination of protection from
invasion of bodily integrity); Note, supra note 171, at 608 (concluding child's action against
mother subject to same justifications as action against third parties).
174. W. PROSSER, supra note 35, § 30, at 143.
179. See Beal, supra note 8, at 362-63 (legal duty not established merely to arrive at desired
result).
180. W.PROSSER, supra note 35, § 53, at 324; Beal, supra note 8, at 363.
181. See Beal, supra note 8, at 363 (prenatal cases establish protected right to be born free of
mental and physical defects).
shield others against an unreasonable risk of harm. 8 2 Risk of harm nec-

essarily encompasses an apparent danger founded upon knowledge of ex-
isting information and a reasonable perception of resulting harm based
upon the actor's position. 8 3 To aid in assessing the reasonableness of the
risk, courts have created the fictitious reasonable person standard.' 8 4 In
determining how the reasonable person would conduct himself or herself
in a particular situation, courts must consider the actor's physical attrib-
utes and intellectual knowledge.'" 5 Generally, an individual with de-
creased physical or mental capacity is obligated to act as a reasonable
person with like deficiency. 186 Accordingly, under this reasonable person
standard, a pregnant woman is required to conduct herself with the de-
87
gree of care equal to that of other pregnant women.'
Grodin v. Grodin,188 brought to light the issue of a pregnant woman's
conduct toward her unborn child in taking Tetracycline during preg-
8 9 A Michigan
nancy. "' appellate court reversed a summary judgment or-
der and remanded a child's negligence action for a determination of the
reasonableness of the mother's conduct.' 0 The defendant's ingestion of
the drug caused severe discoloration of the child's teeth.1 9 ' The court
182. W.PRoSSER, supra note 35, § 31, at 146; see also James, The Qualities of the Reasonable
Man in Negligence Cases, 16 Mo. L. REV. 1, 1 (1951) (defining negligence).
184. W. PROSSER, supra note 35, § 32, at 150. See generally James,supra note 182 (examin-
ing law's perception of reasonable man). Many factors determine whether the conduct of the
actor is negligent. James, supra note 182, at 3-4. Factors most commonly analyzed by courts
in finding liability include: moral qualifications; knowledge, experience, and perception of risk;
skill; physical, mental, and emotional characteristics; as well as age and sanity of the actor.
James, supra note 182, at 4-22.
185. W. PRosSER, supra note 35, § 32, at 151-66; see also James, supra note 182, at 5-12, 17-
22 (identifying individual attributes). Knowledge is crucial to liability because the notion of
negligence presupposes forseeability of harm which, in turn, must depend on the knowledge of
the actors in determining the manner in which they conduct themselves. James, supra note
182, at 5. An actor's conduct is judged by the knowledge one ought to have had at the time of
the incident. James, supra note 182, at 5-6. The concept of knowledge encompasses a myriad
of elements such as maintenance of reasonable memory, awareness of fundamental facts and
laws of nature, actors' perceptions of themselves and their abilities, and common community
characteristics and experience. James, supra note 182, at 7-10.
186. W. PROSSER, supra note 35, § 32, at 151-52; see also James, supra note 182, at 19
(handicapped person must act as reasonable man in light of infirmities).
187. See Note, supra note 9, at 85 (proposing reasonably prudent expecting parent stan-
dard); Note, supra note 171, at 606 (pregnant woman must adhere to degree of care commen-
surate with condition).
188. 102 Mich. App. 396, 301 N.W.2d 869 (1980).
189. Id. at 398, 301 N.W.2d at 869.
190. Id. at 401, 301 N.W.2d at 871. The child's father brought suit against the child's
mother and an obstetrician who assured the mother that it was impossible for her to become
pregnant, thus promoting the continued ingestion of the drug. Id. at 398, 301 N.W.2d at 869.
191. Id.. The mother continued to take Tetracycline until she discovered she was seven
months pregnant. Id. The complaint asserted that the mother negligently failed to seek
proper prenatal care. Id. at 398, 301 N.W.2d at 870.
found that the pregnant woman's intake of medication fell within paren-
92
tal discretion, yet questioned whether the parent acted reasonably.
The court acknowledged a duty on the part of an expecting woman to
her unborn child. 93 The court held the expectant mother to the same
standard of conduct as a third-party tortfeasor. 94 Legal scholars thus
contemplate that mothers must avoid conduct which may give rise to
prenatal injuries to children subsequently born alive but defective. 9 5
V. DISCUSSION
The viability distinction developed merely as a means of circumventing

the "entity theory" developed in Dietrich v. Inhabitants of Northamp-
ton,"196 which relied on the concept that the fetus and mother were one
being.'9 7 The standard remains an important factor for courts to con-
sider in establishing the rights of the unborn. 198 As a measure for deter-
mining recovery, however, viability is inadequate because of its
inherently imprecise and relative characteristics.'99 For example, a child
is able to sustain the same, if not more, harm whether or not it was viable
at the time of the initial injury.2 °° Indeed, medical authority indicates
that the fetus experiences many serious congenital structural defects only
192. Id. at 400-01, 301 N.W.2d at 870-71. Michigan abrogated parent-child tort immunity
with two exceptions. See Goller v. White, 20 Wis. 2d 402, 413, 122 N.W.2d 193, 198 (1963)
(excepting parental exercise of authority and parental discretion of ordinary day to day deci-
sions); see also supra notes 103-09 and accompanying text (examining Goller doctrine and
partial abrogation of parent-child tort immunity). The exception employed in Grodin was
whether the negligent act involved an exercise of ordinary parental discretion concerning med-
ical and other care. Grodin v. Grodin, 102 Mich. App. at 402, 301 N.W.2d at 871.
193. Grodin v. Grodin, 102 Mich. App. at 400, 301 N.W.2d at 871.
194. Id. at 400, 301 N.W.2d at 870.
195. See Beal, supra note 8, at 357 (breach of duty will result in liability to child); Note,
supra note 47, at 535-36 (Grodin indicated woman liable to child). The commentators' reli-
ance on Grodin for extending liability to the mother appears misplaced because the Michigan
appellate court did nothing more than reverse a summary judgment decision. Grodin v.
Grodin, 102 Mich. App. at 401, 301 N.W.2d at 870. In fact, the Michigan appellate court
later refused to apply Grodin in a subsequent case where a twelve year old boy, alleging negli-
gent supervision and instruction in the operation of a dirt bike, brought suit against his father
for personal injuries sustained, including paralysis. Haddrill v. Damon, 149 Mich. App. 702,
707, 386 N.W.2d 643, 645 (1986).
196. 138 Mass. 14 (1884).
197. See Beal, supra note 8, at 330 (viability theory merely attempt to circumvent Justice
Holmes' entity theory precedent); Note, supra note 9, at 55 (viability rule developed as means
of distinguishing Dietrich "entity theory"). See generally Dietrich v. Inhabitants of Northamp-
ton, 138 Mass. 14 (1884) (landmark case developing entity theory).
198. See supra notes 55 & 56 and accompanying text (28 states requiring viability as prereq-
uisite to cause of action).
199. See supra notes 43-46 and accompanying text (viability indeterminate concept).
200. See Smith v. Brennan, 31 N.J. 353, 367, 157 A.2d 497, 504 (1960) (defendant's negli-
gence in automobile collision harmed fetus and caused injury to child when born alive,
although fetus not viable at time of injury); Note, supra note 171, at 588 (harm results whether
injury occurs before or after viability).
19881 MA TERNAL TORT LIABILITY
during the previable period. 2"' Denial of actions for failure to meet the
viability requirement, therefore, defeats many meritorious claims and po-
tentially creates a vehicle for injustice.2" 2 Additionally, viability is calcu-
lable only on a case-by-case basis, making uniform determination
impossible.2" 3 More importantly, as medical technology advances, the
point of viability moves closer to the point of conception, thus allowing
the fetus to live independently of its mother at an earlier gestational
age. 20 4 Given the problems of definition and application, it is difficult to
justify the use of viability as a threshold requirement for establishing the
parameters of a protected legal interest.20 5 Consequently, reliance on
this superficial prerequisite for recovery of prenatal injuries is both le-
gally and medically unfounded.2 °6
The law of prenatal injury recovery has developed extensively since its
inception in 1946.207 Indeed, all but nine states currently recognize a
child's right of recovery for prenatal injuries based on either negligence
or wrongful death theories. 20 Additionally, justifications proffered in
support of litigation provide an adequate rationale for permitting recov-
ery against third-party tortfeasors.2 °9 Paramount to allowing such recov-
ery is the acknowledgement of a child's right to be born with a sound
mind and body to the fullest extent possible. 210 Based on the justifica-
tions for allowing recovery and the recent swing ofjudicial decisions sup-
porting these justifications, one may logically infer that those states
201. See K. MOORE, supra note 113, at 151 (development most easily disrupted from 15th
to 60th day); see also Gordon, supra note 113, at 589 (crucial period during which fetus is most
susceptible to external influences is long before viability); Note, supra note 43, at 563 (congeni-
tal structural defects sustained only within earliest levels of previable period of utmost impor-
tance). In fact, imposing the viability standard as a criterion for recovery raises forseeability
problems in establishing the necessary maternal duty because the greatest potential for fetal
harm occurs before viability. See Note, supra note 47, at 539 (discussing concerns of viability
criterion).
202. See Gordon, supra note 113, at 589 (viability restriction presents a potential of injus-
tice); Note, supra note 43, at 563 (judicial disallowance of previable injury actions denies
claims of greatest merit).
203. See supra note 43 and accompanying text (viability rule dependent upon stage of devel-
opment of each individual fetus).
204. See Note, supra note 47, at 540 (medical improvement increases time of viability).
205. See supra notes 42-47 and accompanying text (enumerating problems defining and ap-
plying viability standard).
206. Cf supra notes 40, 50 & 51 and accompanying text (denominating jurisdictions elimi-
nating viability requirement); supra note 46 and accompanying text (medical confusion con-
cerning viability criterion).
207. See supra notes 35-40 and accompanying text (origin of action for prenatal injuries
against third-party tortfeasor).
208. See supra notes 52 & 66 and accompanying text (discussing jurisdictions denying re-
covery or not faced with issue).
209. See supra notes 59-65 and accompanying text (reasons for allowing recovery).
210. See Beal, supra note 8, at 325 (child's right to be born sound); supra note 65 and
accompanying text (judicial recognition of right to be born sound).
recognizing wrongful death recovery will also favor an action by a child

born alive for infliction of tortious harm against a third party."'
In upholding parent-child suits, courts easily disclaim traditional argu-
ments asserted in support of the immunity rule, such as preserving family
concord, preventing depletion of the family exchequer, and avoiding dan-
ger of fraud and collusion.2 12 Mere contemplation of litigation suggests
that little domestic tranquility remains to be protected. 2 3 Because quar-
rels over property rights also disturb family peace, it is inconsistent to
deny tort actions between parent and child simply because of fear of do-
mestic unrest.21 4 Courts similarly may discard the notion of depleting the
family exchequer because such an assertion ignores the recognized power
of parents to choose the distribution of their wealth.21 5 Moreover, if the
child is unable to recover for his injuries, his own personal assets may
suffer. 2 16 Furthermore, parent-child cases no more encourage fraud and
collusion than any other liability insurance case. 217 The mere existence
of fear of fraudulent claims contradicts family harmony justifications.21 8
The family peace argument shields against unfriendly suits while collu-
sion claims indicate friendly litigation.21 9
During the past twenty-five years, states have consistently abolished
211. See supra notes 59-65 and accompanying text (explaining justifications for permitting
prenatal injury recovery).
212. See Note, supra note 9, at 70-72 (courts contend traditional explanations unpersua-
sive); supra notes 88-95 and accompanying text (positing judicial justifications for barring par-
ent-child suits).
213. See, e.g., Petersen v. City of Honolulu, 51 Haw. 484, 487-88, 462 P.2d 1007, 1009
(1969) (disruption of family peace occurred at time of tort); Sorensen v. Sorensen, 369 Mass.
350, 360, 339 N.E.2d 907, 912 (1975) (harmonious family relationships upset by injury itself,
not lawsuit), abrogated by Stamboulis v. Stamboulis, 401 Mass. 762, 519 N.E.2d 1299 (1988);
Falco v. Pados, 444 Pa. 372, 380, 282 A.2d 351, 355 (1971) (disruptive element injury itself).
214. See Silesky v. Kilman, 281 Minn. 431, 437-38, 161 N.W.2d 631, 635 (1968) (fervent
family disputes normal in property suits), overruled by Anderson v. Stream, 295 N.W.2d 595
(Minn. 1980); Note, supra note 9, at 71 (incongruent to deny tort actions for fear of disrupting
domestic tranquility where acrimonious property disputes enforceable in court).
215. See Dunlap v. Dunlap, 84 N.H. 352, 361, 150 A. 905, 909 (1930) (exhaustion of family
assets argument overlooks parents' power to distribute wealth as they will); Comment, Tort
Actions supra note 75, at 190 (depletion of family exechequer argument presupposes undesir-
able and unrecognized policy of distributive shares at time of property acquisition).
216. See Dunlap v. Dunlap, 84 N.H. at 361, 150 A. at 909 (injury consumes child's assets).
217. See Streenz v. Streenz, 106 Ariz. 86, 89, 471 P.2d 282, 285 (1970) (possibility of fraud
and collusion present in all liability insurance cases); Signs v. Signs, 156 Ohio St. 566, 576, 103
N.E.2d 743, 748 (1952) (intrafamily liability subject to as much potential for fraudulent abuse
as guest host liability).
218. See Note, supra note 9, at 70 (very willingness to litigate suggests little family peace to
protect).
219. See Borst v. Borst, 41 Wash. 2d 642, 653, 251 P.2d 149, 154 (1952) (fraud and collu-
sion argument inconsistent with family harmony rationale); see also Note, supra note 9, at 71
(collusion assumes friendly suit while disruption of family harmony infers hostile litigation);
Note, supra note 171, at 593 (collusive litigation logically contrary to unfriendly familial
litigation).
19881 MA TERNAL TORT LIABILITY
the parent-child tort immunity doctrine.22 ° Only a minority of jurisdic-

tions currently recognize the rule as a complete bar to recovery.2 2' More
importantly, inconsistencies in supporting rationales have reduced the
vigor used to promote continuation of the immunity.2 22 Thus, courts
should remove this antiquated immunity available to parents in suits by
their children.
Review of the medical literature reveals that a woman may directly
control the risk of harm exposed to her unborn child.22 3 Most signifi-
cantly, a pregnant woman may effectively eliminate the possibility of in-
jury to the fetus by monitoring and curtailing her own conduct during
pregnancy.22 4 To reduce the risk of harm to her unborn child, the wo-
man need only take affirmative action to prevent the potential harm. 225
Before determining whether to hold a woman liable for prenatal inju-
ries occuring during pregnancy, courts must establish a standard of care
which the mother owes to the child in utero.226 In light of the interrela-
tion between maternal anatomic processes and the very existence of fetal
conception, development, and survival, the mother-unborn child connec-
tion and duty is evident.2 27 In the context of prenatal conduct, the de-
gree of care to which the law should hold a woman responsible for is that
of a reasonably prudent expectant mother conducting herself under simi-
lar circumstances. 22 At a minimum, a reasonably prudent expectant
mother is attributed with ordinary community knowledge. 229 Applying
the reasonably prudent expectant mother with common community
220. See supra note 107 and accompanying text (discussing jurisdictional nullification of
parent-child tort immunity doctrine); see also RESTATEMENT (SECOND) OF TORTS § 895G &
comment j (1965) (rejecting parental immunity and approving abrogation trend).
221. See supra note 107 and accompanying text (listing jurisdictions recognizing the parent-
child tort immunity rule as a complete bar to recovery).
222. See supra notes 212-19 and accompanying text (disclaiming traditional support for
immunity).
223. See supra notes 113-70 and accompanying text (discussing maternal function in con-
genital deformities).
224. See supra notes 119, 130, 149, 163 & 170 and accompanying text (recommending cer-
tain courses of specialized activity for pregnant women).
225. See supra notes 119, 130, 149, 163 & 170 and accompanying text (medical authority
advising affirmative conduct); infra notes 231 & 232 (providing examples of acceptable
conduct).
226. See supra notes 174, 178-81 and accompanying text (defining required standard of care
as part of duty element in negligence action).
227. See supra notes 178-81 and accompanying text (finding requisite relationship between
parties for duty to arise); notes 113-170 and accompanying text (describing maternal role in
-gestation period).
228. See Note, supra note 9, at 85 (proposing reasonably prudent expectant parent under
like circumstances standard). But see Note, supra note 174, at 607 (concluding reasonably
prudent expectant mother standard imposes unfair burden and suggesting requirement of gross
negligence for liability).
229. See supra notes 185-86 and accompanying text (describing knowledge attributable to
reasonable person).
knowledge standard, it is likely that a cause of action would stand for the
mother's affirmative negligent action, rather than maternal omissions.2"'
Placing a burden on the mother to engage in certain conduct which pre-
vents injury to the fetus appeals far more to notions of natural justice
than requiring her to avoid negligent acts which may pose unreasonable
risks to the fetus.2 3 1 In addition, in utilizing the reasonably prudent ex-
pectant mother standard, no duty should attach until the female knows
or has reason to know of her pregnancy.2 3 2 A standard which presumes
maternal knowledge of the exact time of fertilization may very well im-
pose a standard of care on the woman's use of her body before concep-
2 33
tion positively occurs.
Those states abolishing parent-child tort immunity and recognizing
third party liability for fetal injuries from the point of conception would
be most receptive to the child's suit against its mother.2 3 4 Those jurisdic-
tions partially abrogating the immunity doctrine and allowing an infant's
action for prenatal injuries to stand may also be swayed by current social
trends and permit a suit of maternal liability for prenatal injuries.23 5 Un-
doubtedly, states least apt to allow a child's cause of action against its
mother for negligently inflicted prenatal injuries are those refusing both
to abrogate the parent-child immunity doctrine and failing to recognize
an action for prenatal injuries.2 36
230. See Note, supra note 9, at 86 (likely action would lie for affirmative negligence).
231. See Note, supra note 9, at 87 (affirmative conduct more appealing than burden of avoid-
ing specific conduct). For instance, alcohol consumption or cigarette smoking would result in
liability only if the mother or the community at large was conscious of the effects of such
activity on the community. See supra notes 185-86 and accompanying text (requiring knowl-
edge as a prerequisite to imposing standard of care).
232. See Note, supra note 9, at 87 (liability upon awareness or reason to be aware of preg-
nancy). But see Beal, supra note 8, at 366-67 (discussing when duty to refrain from affirmative
acts attaches). Beal argues that assessing the precise point at which a duty attaches is an
imminent controversy with dramatic ramifications relating to the woman's own bodily activity.
Beal, supra note 8, at 366-67. For instance, Beal questions whether the law should hold a
woman, unsuccessful in becoming pregnant for months or even years, to a reasonable expec-
tant parent standard simply on the basis of her unsuccessful attempts. Beal, supra note 8, at
366-67. Moreover, if a woman conceives with no intent to do so, she is subject to the stringent
conduct standards otherwise not imposed on women in general. Beal, supra note 8, at 366-67.
233. Beal, supra note 8, at 367.
234. See supra note 107 and accompanying text (discussing states abolishing parental immu-
nity); supra notes 54, 57 & 58 and accompanying text (listing jurisdictions allowing recovery
for prenatal injuries from conception).
235. See supra note 107 and accompanying text (states partially abrogating parental immu-
nity); supra notes 54-58 and accompanying text (outlining states tolerating prenatal injury
recovery in various forms).
236. See supra note 107 (indexing states declining to abrogate parental immunity); supra
note 52 (designating states continuing to deny prenatal injury recovery).
V1. CONCLUSION
The law of prenatal injuries has undergone drastic change during the
last century.2 37 Nevertheless, a majority of jurisdictions now permit chil-
dren to recover for injuries suffered while in utero .238 Furthermore,
rapid elimination and abrogation of the parent-child tort immunity doc-
trine is providing children with standing in actions between parent and
child. 239 The Michigan appellate court in Grodin v. Grodin apparently
has left the door open for potentially widespread recognition of the
child's claim against its mother for negligent infliction of prenatal inju-
ries by allowing such a recovery.
To establish a child's right of recovery for injuries sustained as a result
of maternal misconduct, the law must narrowly define the parameters of
such action. Courts should dismiss the viability distinction as an impo-
tent threshold determination for recovery. Notwithstanding elimination
of the viability rule, however, the maternal duty of care owed to an un-
born child must not be so diverse as to hold the mother liable for remote
omissions. Furthermore, courts should impose such a duty on pregnant
women only when they had knowledge or should have had knowledge of
the impending pregnancy. With these limitations instituted, a cause of
action should lie for a child born alive but defective as a result of affirma-
tive maternal negligence occurring in the course of fetal development.
Deborah M Santello
237. See supra notes 12-40 and accompanying text (analyzing history of prenatal injury
recovery).
238. See supra notes 54-58 and accompanying text (recovery for prenatal injuries
permitted).
239. See supra notes 73-109 and accompanying text (setting forth development and present
status of parental immunity).
240. See supra notes 188-95 and accompanying text (discussing court's recognition of
child's suit against mother for prenatal injuries).

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"There is no question that conception sets in motion biologicalprocesses

II. PRENATAL INJURIES

In Dietrich v. Inhabitants of Northampton,2 the first case to consider

12. 138 Mass. 14 (1884).

22. Dietrich v. Inhabitants of Northampton, 138 Mass. at 17.

precedent was insufficient to deny the cause of action.3 He proceeded to

B. The Viability Controversy

biological development, an increasing number of courts renounced viabil-

C. Current Status of PrenatalInjury Recovery

Three jurisdictions continue to follow Dietrich and deny recovery for

the reasoning of Bonbrest, thereby recognizing claims for prenatal inju-

sachusetts and Michigan have extended recovery for wrongful death to a

of proof irrelevant in determining whether a cause of action should pro-

III. PARENT-CHILD TORT IMMUNITY DOCTRINE

McKelvey, 79 the Supreme Court of Tennessee examined the parental im-

79. 111 Tenn. 388, 77 S.W. 664 (1903).

tenance of parental authority, 91 access to criminal redress or removal of

B. Abrogation of the Parent-ChildTort Immunity Doctrine

Originally, the parent-child tort immunity doctrine completely barred

tions arose from an erosion of the familial relationship. 99 Courts justified

of allowing a child the opportunity to maintain a tort claim against its

the tortfeasor 10 8 Alternatively, courts conclude that a child's personal

IV. MATERNAL LIABILITY TO AN UNBORN CHILD

A. The Mother's Role in Causing Congenital Injuries

brain development. 2 8 If the mother fails to supply proper nutrition to

ence restlessness, tremors, and convulsions.1 39 Withdrawal often causes

natal growth retardation. 14 6 Adverse effects of alcohol on growth,

agents.161 Infliction of these diseases early in pregnancy produces serious

161. J. WILLSON, E. CARRINGTON & W. LEDGER, supra note 119, at 274.

utero as is syphilis.169 An expecting women's failure to advise her obste-

B. The Standard of Care

Currently, no confirmed standard of care exists detailing a mother's

shield others against an unreasonable risk of harm. 8 2 Risk of harm nec-

The viability distinction developed merely as a means of circumventing

recognizing wrongful death recovery will also favor an action by a child

the parent-child tort immunity doctrine.22 ° Only a minority of jurisdic-

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