When the Stork Brings a Lawsuit: Tort Claims Brought Against Mothers by Their Living Children Following Prenatal Injury

This paper discusses the rights of living children to bring prenatal injury claims against their mothers for their physical or mental damage. This topic is uncertain at best and the courts that have wrestled with this issue have failed to create a consistent body of law. However, the question continues to appear and this growing trend of claims against mothers for actions taken while pregnant necessitates a thoughtful discussion of the benefits and consequences of imposing maternal liability.

When deciding questions of maternal liability for prenatal conduct, courts are faced with a choice between fetal and maternal rights. Because the law regarding fetal rights remains underdeveloped in comparison to other legal questions, courts are often faced with little or no guidance when making these decisions. The question of fetal personhood is not limited to criminal, tort or constitutional law alone. Rather, the developing nature of this field of legal theory creates a circumstance in which all fields of law are interwoven. After the wrongful death of a viable fetus was recognized as a cause of action in tort, several jurisdictions made the segue into criminal law by punishing crimes against viable fetuses. Therefore, as decisions may affect all areas of law, it is important that courts carefully consider the impact of their decisions.

Fetal rights activists support the recognition of fetal rights as a benefit for society, promoting healthy babies and justice for children born with physical or mental damage due to the tortious acts of another. However, women's rights activists put forth the argument that deciding questions of conflict between fetal rights and women's rights is a zero-sum game, claiming that for every additional right held by unborn children, the liberty of the pregnant women who carry them is impeached.

A study of the existing law in the area of fetal rights vs. maternal rights suggests that recognition of fetal rights may result in harm to the rights of women to such an extent as to outweigh any benefits from maintaining a cause of action for maternal prenatal torts. For reasons of personal autonomy and public policy, this paper takes the position women should not be found liable to their children for prenatal injuries which result in physical or mental damage.

History of Fetal and Reproductive Rights

It would be impossible to enter into a discussion of the conflict between fetal rights and women's reproductive rights without providing a history of the two areas of law. After presenting a history of the independent development of these rights, this paper will discuss how these conflicting rights have come up against each other in court and how courts have determined which right supersedes the other. Finally, because this paper is looking at a civil action maintained by the live child against its mother, it is necessary to explore the current status of the parental immunity doctrine and the effects of the doctrine on any claims brought by a child against his or her mother on the basis of injury due to prenatal conduct.

Fetal Rights

Historically, the fetus has been seen as an object, without the rights afforded to a person. Justice Oliver Wendell Holmes wrote the opinion in the first case considering the rights of a child to sustain an action for prenatal injury. A woman who was five months pregnant fell upon a defective highway and prematurely delivered a child that only survived a few minutes. Justice Holmes determined that the fetus was a part of its mother and therefore had no separate cause of action. Without recognition of the fetus as a separate being, prenatal negligence claims were barred for the next sixty years.

In 1946, a cause of action for prenatal injuries inflicted by third parties was recognized by the District Court of the District of Columbia, in Bonbrest v. Kotz. The court found that a claim for tortious prenatal negligence could be established if two requirements were present: the child was born alive and the injury occurred after viability. These two requirements were slowly eroded by subsequent court decisions, however, and virtually all jurisdictions currently recognize a child's right to a claim against third parties for prenatal negligence.

The recognition of the fetus as a person separate from its mother, and therefore possessing potentially conflicting rights and interests, led to an increase in the 1980s in states' willingness to intervene in the life of a pregnant woman on behalf of her fetus. As fetal rights developed, courts began to recognize "two identifiable beings within the zone of danger each of whom is owed a duty independent of the other and each of whom may be directly injured." As recognition of the possibility of legal conflicts between the fetus and the pregnant mother rose, questions concerning the possible infringement of women's rights began to surface.

Women's Reproductive Rights

The United State Supreme Court has protected a number of constitutional rights regarding reproductive choices. The Court has recognized a right to be free from unwanted sterilization and a right to obtain contraceptives, as well as a general right to protect "individual decisions in matters of childbearing from unjustified intrusion by the State." Most significantly, however, in Roe v. Wade, the Supreme Court recognized the right of women to determine whether or not to terminate their pregnancies before 28 weeks, and gave the states guidance for the creation of legislation concerning the allowance of termination of pregnancies after that period.

The Court in Roe discussed a woman's right to privacy and found that this right was not superseded by rights of the fetus because the unborn are not included under the definition of "person" in the Fourteenth Amendment. It would appear superficially that this recognition of a woman's right to reproductive privacy and the failure to recognize the fetus as a person would create an impossible hurdle for tort suits alleging maternal prenatal negligence brought by children subsequently born alive. However, Roe has been interpreted creatively across the nation, resulting in inconsistent applications when considering the conflict between fetal rights and maternal rights. Roe v. Wade has been distinguished by some courts as being applicable only to those pregnant women who have chosen to abort their fetuses.

An appellate court in New York held that a cause of action for prenatal negligence could be sustained by a child against a mother because such a case did not concern a woman's privacy when electing to terminate her pregnancy, but with the protection of those children who are born when women elected to carry them to term. Proponents of fetal rights argue that women who choose to bring a child into the world, forgoing abortion, may not take actions that could harm the fetus.

Finally, pregnant women are afforded protection of "the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." This protection does not clarify maternal rights, however, as the fetus could potentially be afforded the same right, if recognized as a person. When recognized as such, prenatal injury through tortious conduct of the mother during pregnancy may constitute an interference with the person of the fetus. Due to the push and pull of these two arguments, a number of cases have emerged which may appear to violate the constitutional rights of women under the guise of protecting the constitutional rights of the fetus, and vice versa.

Constitutional Issues Concerning the Conflict Between Fetal and Maternal Rights

"Maternal-fetal conflict" is the term which refers to the legal and ethical dilemma faced when a pregnant woman is advised to undertake a medical course of treatment somehow repugnant to her, for the benefit of her unborn child. At times, these conflicts have resulted in court approved conduct which appears to violate the constitutional rights of pregnant women. Although a number of cases concerning the conflict between mother and fetus regarding medical decisions, this paper will look at a few court decisions which used different approaches to resolve the situation. In Jefferson v. Spalding County Hospital Authority, the Georgia Supreme Court authorized a court order allowing the performance of a cesarean upon a plaintiff, despite her refusal of the procedure on religious grounds, after concluding that the state's interest in protecting the unborn child was compelling enough to override the intrusion into the life of the mother.

The situation in which a pregnant women refuses certain types of medical care has repeatedly surfaced and the courts have been split in their approaches. Although the case mentioned above found that the state had a superior interest to the mother's exercise of religion, not all courts have seen things that way. In Fosmire v Nicoleau, the state argued that it was correct in forcing a blood transfusion on a woman who had just given birth because the state has a compelling interest in preserving the life of the mother on behalf of the baby. The Court of Appeals of New York disagreed, however, and refused to take the position that the state had a superior interest in preventing the mother from exercising her right to religious freedom and bodily autonomy.

When faced with refusal of medical treatment, some courts have taken unusual measures to ensure that the fetus receives the recommended medical care. In 1984, a Nigerian woman in Chicago refused cesarean delivery for religious reasons, despite doctors' concerns for the health of the triplet fetuses. The physicians and hospital legal counsel obtained a court order granting the hospital temporary custody of the triplets, still in utero, and therefore authorized the C section, without the knowledge of the patient or her husband. When the surgery was to be performed, the husband was forcibly removed from the hospital and the woman was strapped to a hospital bed and anaesthetized so the C section could be performed on her body.

The placement of a fetus in the "custody" of another person or state agency is not uncommon, despite the seemingly illogical possibilities of removing custody of a fetus from a pregnant mother. Courts have actively incarcerated pregnant women, both under regular incarceration orders and for the purpose of retaining custody of the fetus, with the incarceration of the pregnant women only occurring as a byproduct of that order. In 1981, a pregnant woman was committed to a psychiatric hospital pending the birth of her baby, following an order by a juvenile court concerned with the unborn child's welfare. Although the mother did not suffer from any psychological condition, the mother was detained because she was unable to provide for herself and for the unborn child. The order was appealed and, despite a dismissal of the appeal as moot, the appellate court in California expressed its disapproval of the juvenile court's actions. The court did not recognize the fetus as a "child" and did not find just cause for the woman's detainment.

However, in 1995, the Court of Appeals of Wisconsin upheld a court order which placed a viable fetus in protective custody, necessitating the internment of the mother. In this case, the mother's obstetrician performed repeated drug tests over a four month period and confirmed the mother's consistent use of cocaine during the pregnancy. When the mother failed to keep the next two scheduled appointments, she was arrested and detained. Although the mother petitioned for habeas corpus on the grounds that such detention violated her Constitutional rights, the court decided that the viable fetus was a "child" and was therefore subject to a right of protection superseding any Constitutional interests of the mother.

Courts have also removed the fetus from the mother's control in a legal sense by creating a separate legal actor for the fetus in order to justify the incarceration of the pregnant woman. In 1988, a Franklin County, Ohio Juvenile Court judge appointed a guardian ad litem for a fetus. The appointment of a guardian ad litem is based upon the presumption that the interests of the fetus have diverged from those of its mother. The mother of the fetus was a cocaine addict, found in contempt of court for failing to get prenatal care and for continuing her illicit drug use. After the fetus received separate legal representation, via the guardian ad litem, the mother was incarcerated to protect the fetus.

Parental Immunity and its Effects on Fetal Rights

When discussing civil claims brought against a parent by a child, one must remember the parental immunity doctrine. Although not as prevalent today as it was fifty years ago, the parental immunity doctrine affects the question of fetal vs. maternal rights by placing restrictions on (and sometimes a complete barrier to) the opportunity to bring any claims against one's mother. Traditionally, the right of children to sue their parents for injury resulting from intentional or unintentional acts was non-existent. Due to a long global history of viewing the child as completely subject to parental authority, no American child tortiously injured by his parents sought to recover damages until late in the nineteenth century.

The first American court to create an immunity doctrine, thus protecting parents from tort liability for acts which injured their children, was the Mississippi Supreme Court in 1891. In Hewlett v. George, the court stated only one reason for prohibiting tort claims by children against their parents: the promotion of family harmony. Additional reasons for supporting parental immunity came from two cases from other courts which quickly followed with similar holdings, one from Tennessee and one from Washington . These reasons include the fear of fraudulent and collusive claims, the protection of family finances, the protection of parental authority and the similarities to spousal immunity. These three court decisions became known as the "Great Trilogy". Following the Great Trilogy, a majority of states adopted the parental immunity doctrine.

Although these policy reasons appear to be valid concerns, and were upheld as such for more than seventy years, they are difficult to defend under scrutiny. Concerning the promotion of family harmony, it must be noted that the disharmony of the situation lies not in the ability of the child to bring the tort claim, but in the tortious action itself. Therefore, granting parental immunity denies relief to these children without promoting family tranquility, and may create more disharmony by allowing the behavior to continue.

Similarly, the protection of family finances through parental immunity does little to actually equalize the financial support of siblings. The original argument was that financial relief given to children following tort suits would deny their siblings the finances to maintain their standard of living. However, as property and contract claims may still be maintained without children, it does not seem sensible that tort claims could be barred for this reason. Also, parents are not under any legal obligation to give each child an equal share of financial support, so the siblings have no legal claim to such, and would have no recourse if the parent decided to arbitrarily deny them the finances to sustain such a standard of living, without any action on the part of their sibling.

The comparisons between parental immunity and spousal immunity have been discarded by courts as two completely separate relationships, which contain separate responsibilities and rights. Because matrimony is a contract voluntarily entered into by a competent adult, whereas become someone's child is an involuntary non-action, different legal rights are accorded to those bound in a contract of marriage.

The hardest justifications of parental immunity to disregard are the concerns about possible collusion and parental authority. Suits based on collusion and fraud are a concern for insurance providers, who may be forced to give financial relief to a child, through the parent's coverage, where the expenses incurred by the child would actually be covered by the parent. Therefore, collusive suits may be a great temptation to parents facing costs of an accident or tortious injury to the child, with no actual injury to themselves (and therefore no coverage). Still, advocates for the abolishment of the parental immunity doctrine point out that barring all plaintiffs from tort suits against their parents for this reason hurts a broad class of people in order to protect insurers from a limited number of fraudulent claims, thus "throwing the baby out with the bathwater".

Parental authority has also been a sacrifice in the fight to allow these suits to go forth. Although opponents of parental immunity recognize the need for parental freedom with regard to the discipline and control of children, they argue that immunity is simply too harsh a remedy because it leaves an injured child with no legal protection of compensation. The recognition of the child's rights demands an infringement of parental authority rights and as American law progressed, the rights of children to bring tort claims against their parents began to be recognized, despite the concern for parental authority.

The first jurisdiction to reverse itself and allow a tort claim brought by a child against his parent was the Wisconsin Supreme Court, in 1963. The court found that the child could bring suit against his father for negligence in allowing the child to ride on the drawbar of a tractor where his leg became caught and seriously injured. The holding in Goller began a national trend and almost all states have since allowed a child to bring suit against a parent. The approaches concerning parental immunity have varied between states, however, resulting in the division of states into four separate categories. Nine states have continued to sustain the doctrine of parental tort immunity, thus barring all tort claims brought by children against their parents. Four jurisdictions, including District of Columbia, never adopted parental immunity.

The remaining states have taken a creative approach to addressing the concerns of allowing children to sue their parents. Twenty-eight states have partially abrogated the parental immunity doctrine by creating exceptions to the general rule. The leading case for these states is Goller, which upheld parental immunity for situations involving the exercise of parental authority or decisions relating to the provision of daily necessities. The remaining ten states have abrogated parental immunity, but replaced it with other restrictions on tort claims of children against their parents. Most of these states have adopted the "reasonable parent" standard which states that the parent has the prerogative and duty to exercise authority over the child, but this prerogative must be exercised within reasonable limits. The question is whether an ordinarily reasonable and prudent parent would have done the same thing in similar circumstances.

The question of parental immunity on claims brought against mothers by their living children for prenatal injury therefore varies accordingly from state to state. At times, courts fail to mention the immunity doctrine in suits between parents and their children, although these holdings have the same consequences discussed above. In a fairly recent case, the District Court of Appeal of Florida found a cause of action against a mother for prenatal injuries following an automobile accident based on limited parental immunity. The court found that a minor child could maintain a negligence action against his mother to the extent of the mother's available liability insurance coverage. This exception to the rule of parental immunity was not found by the Court to interfere with any public policy preserving the mother's autonomy. "It is the Court's ruling that under these limited circumstances, there is no invasion of the mother's decision-making relating to any privacy issue, nor is there any violation of the mother's right to decision-making relating to her health as well as the fetus."

The case focused on the constitutional rights of the mother, and chose not to discuss the parental immunity doctrine at all. Therefore the court did not offer a defense to the possibility of collusive suits being allowed in court, brought by mothers who cannot receive insurance money through any other means. As mentioned earlier, the chance of collusive suits may be a small chance, as we can not accurately predict which claims are honest and which are fraudulent. However, in a case such as this, where an automobile accident has occurred and a mother faces the same high medical bills for her fetus as she would if she injured a third party while driving, the temptation to bring a fraudulent suit may be increased. Therefore, this concern should not be overlooked when considering the benefits and consequences of allowing maternal liability suits for prenatal injury under tort law.

Parental immunity, while relevant to individual suits, is not a universal bar when considering the balancing act between fetal and maternal rights. However, the concerns regarding the allowance of fraudulent suits and the infringements upon parental authority are important factors when considering the reasons for allowing and denying fetal claims against a mother's tortious conduct. Therefore, those concerns should be remembered as the paper moves on to other aspects of the maternal-fetal conflict. Having discussed the history of fetal rights, women's rights, the constitutional issues dividing the two, and the limited effect of parental immunity, I will now turn to the civil cases in which courts have faced the question of maternal tort liability to her living children for prenatal injury.

Tort Cases Concerning the Conflict Between Fetal and Maternal Rights

In 1981, the Court of Appeals of Michigan found a mother liable for negligent conduct during her pregnancy. Roberta Grodin failed to realize that she was pregnant and to inform her doctor that she was taking Tetracycline. The pregnancy was not discovered until she was seven or eight months pregnant, at which point she stopped taking the medication. However, exposure to the medication while in the womb caused the child to develop teeth that were brown and discolored. The child's father brought a suit against the mother and the mother's doctor on behalf of the child.

The court held the mother liable for two reasons. First, the doctrine of parental immunity had previously been overruled by the Michigan Supreme Court. Second, the Michigan Supreme Court had previously held that a child could bring a negligence action against a third party for prenatal injuries. The court reasoned that the Michigan Supreme Court had not limited those who would be held liable and therefore the mother of the child bore the same liability under ordinary negligence principles as would a third person.

Grodin has been criticized by courts and commentators. In Mayberry v. Pryor, the court rejected the reasoning of Grodin treatment of reasonable parental authority as fundamentally wrong. The Mayberry court ruled that reasonable parental authority was not to be a question of fact to be determined by a jury, but a question of law to be determined by the court. Grodin has also been criticized for not resolving the tension between a woman's autonomy and her right to bodily integrity and a fetus' right to be born free from physical or mental injury. By treating the mother and fetus as completely separate entities, the court overlooked the basic conundrum of the situation: even if separate persons, the pregnant woman and the fetus she carries are essentially the same tissue and therefore the same body.

Discussion of the relationship between mother and fetus is also absent in the Grodin decision, another aspect that has been criticized. In Stallman v. Youngquist, the Supreme Court of Illinois found no cause of action for an unintentional tort by the mother against her unborn child. The case involved prenatal injuries sustained following an automobile accident. The court in Stallman was critical of Grodin, noting that "the Grodin court would have the law treat a pregnant woman as a stranger to her developing fetus." The court found this position to be a "legal fiction" and recognizing that such a view would be consistent with the rights of a fetus being superior to those of its mother, the court was not willing to make that position the law of the state.

Despite these criticisms of Grodin, the case has not been overruled. In fact, a case using the same reasoning as Grodin was litigated more than ten years later, with the same result. In 1992, the Supreme Court of New Hampshire held a mother liable for negligently failing to use reasonable care while crossing the street. The mother was struck by a car and the fetus was subsequently born with catastrophic brain damage which rendered her severely and permanently disabled. The child's father brought the action against the mother on behalf of the child. The court relied upon the abolition of the parental immunity doctrine in New Hampshire and the ability of infants born alive to maintain actions for prenatal injury against third parties to conclude that a child born alive may maintains a cause of action against his or her mother for prenatal negligence. In reference to the possible public policy implications of its ruling, the court disagreed that their decision would deprive women of the right to control their lives during pregnancy, stating, "...rather, she is required to act with the appropriate duty of care, as we have consistently held other persons are required to act, with respect to the fetus."

Although the Bonte court did not mention Grodin, the case serves to support Grodin nonetheless. Both cases hold pregnant women to the same standards of care that are expected of third parties in regards to the fetus. However, a difference may be seen between the two cases, in that the mother in Grodin was unaware of her pregnancy when she performed the negligent action, whereas the mother in Bonte performed the action while fully conscious of her pregnancy. Therefore it would seem that the effects of Grodin may affect women who do not know that they are pregnant, while Bonte could be limited to those who disregard their pregnancy when taking negligent actions. Bonte is the only case of the two to acknowledge that the relationship between a mother and fetus is unique, but the Bonte court failed to see enough of a significant difference between that relationship and the relationship of the fetus to the world at large to keep from imposing liability on the mother.

The Imposition of Maternal Liability

The contrasting interests when considering maternal liability for prenatal injury are driven by basic moral principles as the choice is one between denying a citizen her Constitutional rights and denying an injured child his or her right to justice as defined by our legal system. "The legal system should not condone a mother's harm to her children or her fetus, however, these actions should force us to confront the complexity of women's lives and systematic subordination that may face all women with the advent of such laws."

The Effects of Imposing Maternal Liability

Maternal liability is a unique gender-based burden. No man will ever be found liable for maternal prenatal negligence. A prenatal injury caused by a man, whether he is the father of the unborn child or not, is treated as a third person claim. Due to the gendered nature of this claim, it is appropriate to discuss the possibility of liability in terms of gender. The possibility of maternal liability is rooted in an idea that a certain type of feminine care is owed to the fetus by the mother. Although Bonte argues that this type of care is no different from that of any third person, that statement cannot be true because of the unique nature of the relationship between mother and fetus, as recognized by Bonte.

Holding pregnant women to the same standard of care as third parties raises two concerns. One is that the pregnant woman has the right to treat her body in ways she sees fit, inside the confines of the law, which includes activities such as drinking, smoking, sexual intercourse, and any other number of legal activities which may be harmful to a fetus. The second concern is that pregnancy is often difficult to discover. If a woman does not have access to medical care, or is not attempting to get pregnant and possibly believes that she is within circumstances barring that event, there is a possibility that the woman may go weeks or perhaps months without discovering her pregnancy.

These concerns show us that imposing maternal liability would have serious consequences for the bodily autonomy of childbearing women. Christa Richer commented, "The crux of this decision will be whether the courts will hold as a matter of public policy that a woman should be held to a standard of conduct toward her own body long before the actual duty arises due to her continuing ability to conceive." Should all women of childbearing age, possessing the capability of becoming pregnant therefore treat their bodies at all times in the way courts and society expect pregnant women to treat their fetuses? Such a requirement seems absurd, but the case of Grodin, in which the mother did not know of her pregnancy, suggests that such an extreme requirement could find its way into the law.

This additional sacrifice appears to be expected of mothers in the Grodin and Bronte courts as part of their role of "mother". Critics have noted that "the stereotypes that are attached to the legal construct of the ideal mother continue to include: self sacrificing, nurturing, married, stay at home, monogamous and heterosexual." Although it would be hard to imagine a court putting forth an opinion which required a mother to be all of these things in order to avoid maternal liability, the possibility that courts (and society) are holding pregnant women to some sort of idealized standard is dangerous to women's liberty.

The constitutional cases discussed earlier regarding the refusal of medical care illustrate how dangerously close to demanding these ideal standards the law may be. Forcing medical treatment on pregnant women, despite their refusal, on the basis that a woman's concerns are not valid enough to outweigh a state's interest in the fetus is to demand a high level of self-sacrifice from women who wish to bear children. "We are faced with what may truly be at the heart of the debate - our own biases and assumptions that the 'ideal' mother would always act on her child's behalf even if to do so would infringe upon her fundamental rights, and even at the expense of her own well-being." It would seem that some standard of reasonableness is needed for determining when it is reasonable for a woman to put her rights above the rights of her fetus. However, the question of whether to put a higher value on the mother or the fetus is an question of ethics, not necessarily a question of law, and courts may be ill-suited to make such a determination.

The encouragement and perpetuation of the "ideal" mother image causes harm to pregnant women by holding them to a standard which is difficult, if not impossible, to live up to. It should be noted that holding all women to a uniform standard of behavior during pregnancy ignores the fact that women of all ages, backgrounds and circumstances may become pregnant. If a woman, through deprivation of education or adequate medical care, fails to discover that she is pregnant until the seventh or eight month, as the mother in Grodin did, is it fair to hold her to the same standards of conduct during pregnancy that one would expect from a well-educated member of the upper class? If so, for what purpose, if she cannot change her circumstances? If not, is it fairer to only hold well-educated members of the upper class to a high standard of pregnancy conduct or to protect all pregnant women from maternal liability?

Advocates for women's rights have expressed fear that long-term repercussions of holding women accountable for any behavior during pregnancy may result in maternal liability for activities such as smoking, jogging, or failing to take prenatal vitamins. Although fetal-rights activists dismiss these concerns as exaggerated and unfounded , the possibility of an extended interpretation of "negligent behavior" seems more real when considering the possibility of negligence due to alcohol consumption during pregnancy.

It is not illegal to drink alcohol, even in excessive amounts, while pregnant. However, numerous studies have appeared which indicate the ill effects of alcohol on the developing fetus. While it may be a stretch to foresee jogging as a dangerous activity which constitutes maternal negligence, the possible claim of maternal negligence brought against an alcoholic who subsequently gives birth to a child suffering from fetal alcohol syndrome seems less speculative. Women's rights activists stress that the illusion of differences between the two situations is dangerous, because both situations involve a pregnant woman exercising her right to carry out a legal activity, and therefore both situations constitute the same legal circumstances. Once again, the question becomes one of the reasonableness of the woman's conduct.

The Effects of Barring Claims of Maternal Liability

If maternal liability is barred, there is the possibility of injustice to children suffering from physical or mental damage as a result of their mother's injurious conduct during pregnancy. When considering the reasons for litigation by injured children against those who have injured them, a major concern is that of financial support. When a child is injured by a third party and needs medical care, or is rendered unfit to work and support himself or herself, the child often has the opportunity to demand a financial sum from the person who caused the injury. In most cases, the person is a third party and the demands for financial rewards are logical.

However, in the case where the child is suing the parent, the question of finances is a tricky one. The first is that criticism that the financial loss may result in detrimental effects to child's home life and child's siblings. As discussed earlier, in the parental immunity section of this paper, that criticism does not hold up under scrutiny as the siblings of the child have no legal right to equal financial support, nor to the continuance of a standard of life previously enjoyed. The second criticism is that, in the event that a child dies, the money would return to the tortfeasor, which is against our principles of fair justice. However, withholding relief from a child on the chance that the child may die without spending the financial award seems to be a morbid and bizarre reasoning.

There is also the issue of insurance. We saw earlier that the District Court of Appeals of Florida found a child could maintain a claim of maternal liability on the stipulation that the mother's insurance would cover the financial reward. It would appear that, where the money is not available from any other source, the allowance of these suits would be beneficial both to the child and to the mother. In fact, the mother may support the suit due to her increased financial burden after the child's birth and may actually open up an avenue for the possibility of collusion, if anything.

These collusive and fraudulent suits are a concern not easily addressed, as discussed earlier when considering parental immunity. These circumstances may create problems of proof, as mothers would have the opportunity to recreate the situation in such a way as to make themselves tortfeasors in order to receive financial settlements. Therefore, the courts could potentially be flooded with what may in fact be lawsuits between the mothers and their insurance companies under the guise of children suing their parents.

Without the demands of financial compensation, the reasons for promoting litigation against a mother by a child suffering from prenatal injuries shift to the more general notion of justice and deterrence. Proponents of criminalizing certain behaviors of pregnant women in an attempt to prevent the exposure of fetuses to dangerous influences have been fueled by the high costs of treating drug-impaired children carried by the United States economy.

Ideas of deterrence in connection with the tort of maternal negligence for prenatal injury are complicated by the fact that the pregnant woman's conduct is often unintentional. Critics of the imposition of maternal civil liability have noted that allowing tort claims against mothers for prenatal injury "will neither prevent fetal harm nor promote fetal well-being" because such claims would be imposed post-injury. Without the benefits of creating deterrence from negligent prenatal behavior, the argument for sustaining maternal liability in civil cases is weakened.

Liability Should not be Imposed

Recognizing maternal liability in cases of prenatal injury followed by the birth of a live child would excessively harm the rights of pregnant women without significantly providing justice for children suffering from prenatal injury. Recognizing these claims would also fail to further any public policy interest and therefore cannot be justified. "State practices which deprive a woman of control of her behavior during pregnancy reduce her to a 'maternal host,' a second-class citizen possessing constitutional rights inferior to those of men and non-pregnant women." The problem of prenatal negligence and injuries resulting from those negligent actions should be corrected in a more preventative manner in order to focus the state's energies on curtailing the problem before the situation reaches a point of decision between fetal and maternal rights.

Conclusion

Courts have created a confusing and inconsistent body of law when determinations of fetal rights and maternal rights have been made. The result is a trend towards decisions which would violate the constitutional rights of pregnant woman while simultaneously failing to provide any actual remedy to claimants, either directly or through benefits to society at large. Courts should recognize the rights of pregnant women to autonomy and parental authority and allow these women to make personal, ethical decisions regarding the prenatal care of their children without interference from the court.

Bibliography

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Cheryl E. Amana, Maternal-Fetal Conflict: A Call for Humanism and Consciousness in a Time of Crisis, 3 Columbia Journal of Gender and Law 351, 360 (1992).

Christa J. Richer, Fetal Abuse Law: Punitive Approach and the Honorable Status of Motherhood, 50 Syracuse L.Rev. 1127, 1149 (2000).

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Cases

Albala v. New York, 54 N.Y.2d 269, 272 (1981).

Bennett v. Hymers, 101 N.H. 483 (1992).

Bonte v. Bonte, 136 N.H. 286 (1992).

Carey v. Population Services International, 431 U.S. 678, 687 (1977).

Dean v. Smith, 106 N.H. 314.

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Fosmire v. Nicoleau, 75 N.Y.2d 218 (1990).

Goller v. White, 20 Wis. 2d 402 (1963).

Grodin v.Grodin, 102 Mich.App 396 (1981).

Hewlett v. George, 68 Miss. 703 (1891).

In re Angela v. Kruzicki, 197 Wis.2d 532 (1995).

In re Stefanel Tyesha C., 157 A.D.2d 322 (NY 1990).

In re Stevens, 126 Cal.App.3d 23 (1981).

Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86 (1981).

Mayberry v Pryor, 134 Mich.App.826 (1984).

McKelvey v. McKelvey, 77 S.W. 664 (1903).

National Casualty Company v Northern Trust Bank of Florida, 807 So.2d 86 (FL 2002).

Plumley v. Klein, 388 Mich. 1 (1972).

Roe v Wade, 410 U.S. 113 (1973).

Roller v. Roller, 79 P. 788 (1905).

Skinner v Williamson, 316 U.S. 535 (1942).

Stallman v. Youngquist, 125 Ill.2d 267 (1988).

Union Pacific Railroad Company v. Botsford, 141 U.S. 250, 251 (1891).

Womack v. Buchhorn, 384 Mich. 718, (1971).