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Vanderbilt Law Review

Tort Actions for Injuries to Unborn Infants

First Page

282

Abstract

It is somewhat surprising that until less than sixty years ago no one had attempted to assert in a court of law that he should be allowed to recover for impairments to his body resulting from injuries wrongfully inflicted upon that body while still in the womb of his mother, but the failure to claim this right does not necessarily mean that the common belief was that such an action could not be maintained. Whatever the reason for the hundreds of years of silence, the case of Dietrich v. Inhabitants of Northampton, decided by the Supreme Court of Massachusetts in 1884, touched off a string of over a score of cases from that date until the present, involving in some way the asserted right to recover for prenatal injuries. In that case a mother who was more than four months pregnant fell as a result of defendant's negligence and suf- fered a miscarriage. There were some indications of life in the child for about fifteen minutes and on this basis administration was taken out. In an action by the administrator under a wrongful death statute allowing recovery for the death of any person resulting from tortious conduct on the part of another it was held, in an opinion by Mr. Justice Holmes, that the child was not at the time of the injury a "person" within the meaning of the statute. Unfortunate- ly, the facts in this first case offered little natural appeal toward allowing a new cause of action to be maintained. Causal relation would have been very difficult to prove; it is very doubtful that the infant was born alive; if it was born alive its death resulted not directly from an injury but from the fact that it was born before it became viable (capable of sustained separate exist- ence) ; and the only recovery possible was under a cause of action which did not exist at common law but was purely statutory. The holding of the case was perhaps justified under the facts, but the weight later given the case as authority for holding that no cause of action could be maintained for pre- natal injuries was not warranted.

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