Initial, we have to understand that the term pre-natal injury means.
According to US. National Library of Medicine describe the pre-natal injury as the damages to the embryo, foetus and mammalian before birth. In simple words, that an unborn child under the womb of his/her mother got injured from any of the result from the environmental or physical injury.
In our society every individual has a right to get remedy for their injury done by any another individual. So, an unborn child has also a right to get remedy and has right to live in the society.
In Ancient times, the protection given to the infants are very strict in nature and it was considered that the unborn child who is inside the womb of the mother is a part of her mother. According to this if an injury is inflicted to the infant is occurred then it should be recovered by the mother only. Although from many years this mother-child relationship is debatable that mother is liable for the injury or not. Therefore there is some liability on the mother’s in the definition of tortious liability.
Therefore, different states deals differently in this liability.
This liability to secure the infant was firstly dealt in America under the case of Dietrich vs. Inhabitants in this case the Court didn’t provide any remedy to the infant for suffering pre-natal injury. The Court held that the child wasn’t locus standi in the court and he was not alive on the time of decision. So, the case was dismissed on this ground.
This Case judgement was followed for many years and in another case of 1891, the court held that non-existence of unborn child doesn’t amount to the defendant and argued that his duty of care was only with the mother not to the infant.
Although United States take more than years to know the right of infants to gain remedy for their pre-natal injuries and amend the judgement of Dietrich case. However, there was case named Bonbrest vs Kotz this case abrogate the rule of Dietrich case and says that an infant can sue for pre-natal injuries but it was only competent in two ways and the ways are that the foetus should be feasible and an infant should be born alive for locus standi. These both competent have been revoke from many courts.
So, from all the above discussion we can see the evolution and arguments that what is the liability of a mother’s in the context of pre-natal injuries?
Factors which effect the unborn child
There are so many factors which effect an unborn child when he/she is in the womb of mother. Both the environmental and physical factor effect the infant. One of the example of pre-natal injury done by the environment factor is lack of nutrients. If a pregnant women doesn’t intake all the necessary nutrients require for the child growth it can be very severely harmful for the infant. Proper nutrients include all the proteins, vitamins, minerals and many more. Impairs brain development is the result of deficit protein and minerals taken by mother. So, it is the supreme duty of the mother to take all the necessary measures to give birth a healthy child.
There is a also issue of voluntary action or non-voluntary action taken by the mother which we see in the context of alcohol and drugs consumption. It is very dangerous for the mother and also for the infant. Any form of drugs can harm the foetus. The infant who were born after the consumption of the drugs was born with many disease in his or her body which effect them as in the form of either mental or physical health. Like, those women who consume heroine the infant will suffer from the disease like tremors and convulsions or if the mother consume alcohol or any type of liquor during her pregnancy then it effect the infant in the weight or many other physical factors on the body of the infant. Likewise, the consumption of cigarette smog can also effect the infant by depletion in oxygen which the infant was receiving from the mother.
So, from all the factors we discuss shows that how a mother was directly connected with her unborn child and any action of a mother is directly react on the child which is inside her womb. It is the very prime to secure the child and born the child healthy. If there is any negligence done on the part of mother side she is directly liable for her action.
Negligence on the part of mother side
The most usual negligence came in front from the mother side is physical accidents or any household negligence or negligence while driving the vehicle and on this basis mother was absolutely liable for pre-natal injury caused to infants. The main shield for the unborn child was her mother’s womb it keep the infant safe from external factors and if any direct physical contact occurs and effect the womb can also effect the unborn child. So, it was the duty of a mother to restrict herself from doing such activities which effect the unborn child and cause pre-natal injuries.
The doctrine of parental immunity
In early years, the society doesn’t accept any obligation towards parents and gave them the immunity. This doctrine is called parental immunity in which child can’t sue any civil case upon their parents because of to maintain a stable and family oriented society. The Courts argued the parents and child have corresponding duties towards each other. The parents have a duty of care and in return child has to obey their parents.
However, this judgement was put an end in the year of 1963 which was decided in case of Goller vs. White the Court end the doctrine of parental immunity.
This judgment was followed by many courts and held that just like other individuals a child has also enjoy the same the right of protection.
Is there any Act provided to Unborn Child
In United States there is an Act which recognized the unborn child as a legal person and any offence was done against them was punishable.
However, there is no specific law in the context of the liability of mother’s in India. India’s law of tort was procure from English Common law. In other big states like Canada, Australia and USA who explore in these case from many decades and extent their laws in these fields.
The India discover there options where the negligence of mother came across.
Firstly, mother was liable for negligence in all cases,
Secondly, in third party context and
Lastly, under Motor Vehicle Act in the context of motor vehicle accidents.
In the England there was Act which doesn’t give any remedy benefit to the mother in the negligence of motor vehicle accidents.
There are numerous factors and thoughts which can’t determine the accurate duty of care from the mother to a child. It is very difficult to recognize the mother love for their infant. There was many activities performed by the mother which can’t be determine whether it was done in reasonable action in the duty of care or not. Somehow this was a burden on the mother to secure her unborn child. But also in determining the rights of infants there should be balance between the mothers and infant child.
Although, many individuals says that some women are very negligence towards their duty of care and may not act in the interest of the infant. But to get the equal balance between both mother and child relation, we have to see whether the negligence was genuine or voluntary done.
We see all the possibilities and arguments given by the Court’s in the context of pre-natal injuries. It take many years in evolution of the laws according to the modern society. The mother-child relationship is directly connected with each other. This legislature change very drastic all over the states. The very prime remedy given to the infant was abrogation of parental immunity which provides safeguard to the parents directly in the context of family oriented society.
In India, there is no proper legislature in the pre-natal injuries but Indian law recognised the foetus as a legal person. After the revocation of parental immunity the child can stand for themselves. Whenever any such case arise in the Court, the Court has to adopt those formula which make the balance between the mother duties and also protect the right of the unborn child. The maternal duty was very important for her infant because of these the child born healthy. The factors which effect the child because of the mother action has to be neglect by the mother.
 138 Mass. 14 (1884)
 Capacity to appear in front the Court
 65 F. Supp. 138 (D.C.D.C. 1946)
 Form means prescribed, non-prescribed or illegal drugs.
 20 Wis. 2d 402 (1963)
 The Unborn Victims of Violence Act, 2004
 England’s Congenital Disabilities (Civil Liability) Act, 1976
This Article is Authored by Vedanshi Gupta, 3rd Year B. Com LLB Student at Banasthali University.