Vanderbilt Law Review

First Page



Recently two American courts have recognized a right of infants to recover for prenatal injuries. In so meeting the challenge of the common law that "for every wrong there is a remedy" they have taken a step which no other court of final jurisdiction has taken on the strength of the common law alone...

That an infant "en ventre sa mere" is a distinct entity is a scientific, common sense, legally recognized fact. That this entity may suffer prenatal injuries and carry those injuries into postnatal life is well known. That in many cases adequate proof of causal relation could be made has been demonstrated. That no flood of fraudulent and ill-founded suits would result from allowing such actions is proved by the experience of those jurisdictions allowing them. That an action should lie for prenatal injuries, if justice is to done, is an inescapable conclusion. The two recent cases are strong indications that this conclusion will be reached by many courts in the future. Whatever the reasons were for the holdings of the early cases on this point there appear to be no valid reasons for such holdings at the present. Courts will likely express an attitude similar to that of Mr. Justice Holmes, to the effect that "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."