Do we owe unborn babies a duty of care?

Visit my website to learn more about my services. Traditionally, fetuses are not owed a duty of care by midwives and doctors. The duty of care is owed to the woman who carries the baby, and her decisions are generally respscted, even if those decisions are not in the best interests of the baby. This case challenges the notion that midwives and doctors do not owe a duty of care to a fetus.


Does an obstetrician have a duty of care to an unborn child?

... a 2008 court decision that found a doctor had no such obligation in the case of a girl born with birth defects because of an acne drug prescribed to her mother, says no.

But the family of another child says yes.

The issue will be argued today in a London .... courtroom. The ... family ... has brought a motion before the courts on behalf of their 8-year-old son, Kevin, born with hypoxic ischemic encephalopathy, or brain damage caused by oxygen deprivation.

He has since been diagnosed with cerebral palsy – the result, his family says, of negligence on the part of three obstetricians and four obstetrical nurses at ... Hospital.

For the last seven years, the [family] have been embroiled in a legal battle with the hospital ... claiming that the mother ... was given too much of the drug oxytocin to speed up labour and then not adequately monitored.

The defendants deny the allegations ... the court will deal explicitly with the duty-of-care issue ...

The family's lawyer ... says the [family] were recently thrown a curve ball by the defendants, who are claiming to have no duty toward an unborn child.

... the hospital cites an important legal decision that came down last year ... which found that doctors cannot owe a duty of care to unconceived children because their primary obligation is to their female patients.

"Because the woman and her fetus are one – both physically and legally – it is the woman whom the doctor advises and who makes the treatment decisions affecting herself and her future child," the decision read.

The case involved Jaime ... who was left with birth defects from an acne drug taken by her mother.

A [doctor] ... prescribed the drug Accutane, which is known to cause catastrophic injuries to a fetus. He believed there was no chance the mother would become pregnant because her husband had undergone a vasectomy. But the vasectomy failed and Jaime was born without a right ear and with portions of her face paralyzed.

"The decision of (the) ... Court of Appeal ... is ... that no such duty [of care to an unborn baby] was owed," ...

But Legate maintains the two cases are entirely different and argues that the findings from the Paxton case should have no bearing on Kevin's.

... the ... Superior Court of Justice, arguing that health-care providers did, indeed, have a duty of care to Kevin in the critical hours leading to his birth ...

The finding could set a precedent for future cases and potentially see interventions forced on women that are felt to be in the best interests of the (unborn) baby.

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