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CAPACITY OF UNBORN CHILD TO SUE IN LAW OF TORTS, Summaries of Law of Torts

National law UniversityLaw of Torts

CAPACITY OF UNBORN CHILD TO SUE IN LAW OF TORTS

Typology: Summaries

2022/2023

Uploaded on 10/31/2023

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Discuss with case laws whether
an unborn person can sue under
the law of torts?
Protecting the Rights of the Unborn Child: Allowing an unborn child to sue in the law
of torts would recognize and protect their interests and rights. By providing legal
recourse for harm suffered before birth, it ensures that their well-being and welfare
are given due consideration.
Accountability and Deterrence: Permitting unborn children to sue would hold
individuals or entities accountable for their actions that cause harm to the foetus.
This would serve as a deterrent and encourage others to act responsibly, reducing
the likelihood of negligent or harmful conduct towards pregnant women.
Access to Justice: Allowing an unborn child to sue would ensure that they have
access to justice and compensation for any injuries suffered while in the womb. It
would provide them with the same legal protection enjoyed by individuals who have
been born.
Recognition of Prenatal Rights: Recognizing the capacity of an unborn child to sue
acknowledges the importance of prenatal rights and the value of foetal life. It shows
respect for the potential personhood and the legal rights that the child would
acquire upon birth.
Legal Personhood Requirement: The law traditionally requires legal personhood for
individuals to bring a lawsuit. An unborn child has not yet attained legal personhood
and is not considered a separate legal entity, making it difficult to establish their
capacity to sue in tort.
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Discuss with case laws whether

an unborn person can sue under

the law of torts?

 Protecting the Rights of the Unborn Child: Allowing an unborn child to sue in the law of torts would recognize and protect their interests and rights. By providing legal recourse for harm suffered before birth, it ensures that their well-being and welfare are given due consideration.  Accountability and Deterrence: Permitting unborn children to sue would hold individuals or entities accountable for their actions that cause harm to the foetus. This would serve as a deterrent and encourage others to act responsibly, reducing the likelihood of negligent or harmful conduct towards pregnant women.  Access to Justice: Allowing an unborn child to sue would ensure that they have access to justice and compensation for any injuries suffered while in the womb. It would provide them with the same legal protection enjoyed by individuals who have been born.  Recognition of Prenatal Rights: Recognizing the capacity of an unborn child to sue acknowledges the importance of prenatal rights and the value of foetal life. It shows respect for the potential personhood and the legal rights that the child would acquire upon birth.  Legal Personhood Requirement: The law traditionally requires legal personhood for individuals to bring a lawsuit. An unborn child has not yet attained legal personhood and is not considered a separate legal entity, making it difficult to establish their capacity to sue in tort.

 Complexity of Establishing Causation: Proving causation can be challenging when it comes to harm suffered by an unborn child. Determining whether the harm occurred due to the actions of the defendant or other factors can be highly complex. This creates practical difficulties in establishing liability and damages.  Potential for Indeterminate Liability: Recognizing the capacity of unborn children to sue may lead to a range of uncertainties and indeterminate liability. It may open the floodgates for litigation, creating a significant burden on the legal system and potentially subjecting defendants to excessive liability.  Moral and Ethical Considerations: The issue of recognizing the rights and interests of unborn children is often intertwined with moral and ethical debates. Some argue that these decisions should be left to the legislative and policy-making bodies rather than the courts, as they involve complex societal and moral considerations.  Availability of Alternative Remedies: In cases of harm suffered by an unborn child, alternative remedies may be available, such as claims brought by the parents for their own losses or through other bodies of law like medical negligence or product liability. These existing remedies may adequately address the harm suffered without the need for recognizing the capacity of unborn children to sue.  There has been a mixed opinion of Indian Judiciary in this matter. Some of the cases that gave judgment regarding this topic are: o Re: Baby Manu (2008),* the Supreme Court of India held that an unborn child has the right to inherit property. The Court also held that an unborn child has the right to be protected from harm, and that the state has a duty to protect the rights of unborn children. o Dr. Sushila Nayyar v. Union of India (2010),* the Delhi High Court allowed the parents of an unborn child to sue the government for negligence after the child was born with a disability due to a medical error. The Court held that the parents had a legal right to sue on behalf of their child for injuries sustained before birth.