英文论母亲婴儿洗澡水：侵权法分配正义与对婴儿的责任SSRN-id980106

Electronic copy of this paper is available at: http://ssrn.com/abstract=980106 ON MOTHERS, BABIES AND BATHWATER: DISTRIBUTIVE JUSTICE, TORT LAW AND PRENATAL DUTIES TSACHI KEREN-PAZ Colman Law School, Israel; Cornell Law School, USA ABSTRACT In this article I seek to apply a general claim about tort law – that it should promote as one of its goals a better attainment of distributive justice – to the context of maternal prenatal duty. My argument is that, contrary to common belief among lawyers, the negative burden that a maternal prenatal duty of care would place on potential defendants’ autonomy, although significant, is not a convincing reason in itself to oppose such a duty. Crucial to this argument is the fact that it is the autonomy of women that is limited. Moreover, and somewhat counter-intuitively, I argue that a genuine distributive-egalitarian concern can in fact support the imposition of liability, within the limits of actual insurance coverage, when certain conditions are met, at least according to one understanding of this concern. KEY WORDS distributive justice; duty of care; egalitarianism; negligence; prenatal duties INTRODUCTION IN THIS article, I seek to apply my egalitarian approach to tort law (Keren-Paz, 2000; 2003; 2004) by critically examining the desirable contours fora maternal prenatal duty of care in tort law. This article attempts to achieve two goals. The first is to justify the judicial rejection of an unlimited duty of care, while emphasizing that such justification is ingrained in a distributive-egalitarian concern regarding women’s autonomy interests, SOCIAL & LEGAL STUDIES Copyright © 2005 SAGE Publications London, Thousand Oaks, CA and New Delhi, www.sagepublications.com 0964 6639, Vol. 14(2), 179–196 DOI: 10.1177/0964663905051218 Electronic copy of this paper is available at: http://ssrn.com/abstract=980106 rather than an abstract concern for autonomy. A second goal is to show how an egalitarian concern about women’s well-being might, perhaps counter- intuitively, justify recognition of a duty of care, when the mother’s liability is insured. While it is well established that third parties owe a duty of care to a born- alive child (Payton v Abott Labs (1982); Montreal Tramways Co. v Leveille [1933]), the question of whether tort law should impose liability on pregnant women for seemingly negligent behaviour during pregnancy resulting in injury to the born-alive child receives different answers in different jurisdic- tions. In Canada the Supreme Court flatly denied the possibility of imposing a judicial duty of care on pregnant women towards their born-alive children (Dobson v Dobson [1999]). In New South Wales, the court imposed a duty of care in a scenario similar to Dobson in which the pregnant woman was involved in a car accident which injured the child subsequently born. The New South Wales court noted the different policy considerations in cases involving an insured activity that breaches the general duty of care, as opposed to cases in which the lifestyle choices made by the pregnant woman allegedly injured the child (Lynch v Lynch (1991): 415). In England there is an explicit statutory immunity in tort for pregnant women in relation to prenatal negligence, with an exception for negligent driving (Congenital Disabilities (Civil Liability) Act 1976 (UK): s. 1(1)). The few jurisdictions in the United States that have considered this dilemma have reached inconsist- ent results. A duty of care was recognized where the mother took a medicine while pregnant, causing the child to be born with discoloured teeth (Grodin v Grodin (1980)); when a seven-month-pregnant woman was hit by a car while crossing the road not in a designated crosswalk and was insured (Bonte v Bonte (1992)); and when a pregnant woman was involved in a motor accident (National Casualty Company v Northern Trust Bank (2002)). Duty was denied when a pregnant woman was involved in a motor accident (Stallman v Youngquist (1988); Remi v MacDonald (2004)); and when a woman abused drugs during pregnancy (Chenault v Huie (1999)). In all the cases where a duty was recognized (Grodin, Bonte, Lynch, National Causalty and the UK legislation), insurance existed, despite the fact that this was not always clear from reading the case (Robertson, 1983: 441). Essentially, then, courts’ decisions can be grouped into those rejecting a duty or making it conditional upon insurance. Moreover, in National Causality the liability was expressly restricted up to the limits of the mother’s liability insurance. An example of a sweeping rejection of duty is the holding of the majority in the Canadian case of Dobson [1999]. In Dobson, the defendant had been involved in a car accident, caused by her own negligent driving, while she was 27-weeks pregnant. As she was insured, she wanted to be found liable in the suit, brought in the name of her plaintiff-son by his grandfather. Focusing mainly on autonomy concerns (pp. 768–90), the Court held that a duty in tort should be categorically denied. The Court refused to distinguish between ‘lifestyle choices’ and the breach of a general duty of care. Lifestyle choices are discretionary decisions by the pregnant woman on how to lead 180 SOCIAL & LEGAL STUDIES 14(2) her life, which could have particular effects on the well-being of the child- to-be due to the proximity between the pregnant woman and the foetus throughout the pregnancy. An obvious example would be the consumption of alcohol during pregnancy. To me, the constitutive aspect in classifying activity as a lifestyle choice is that it can create a particular risk to the child- to-be, one different in kind from the risks imposed by the mother-to-be upon third parties. By contrast, a general duty covers cases of ‘general’ negligence, in which ‘a fetus may sustain injuries from the negligent acts of its mother that may not directly implicate the unique relationship between mother and fetus’ (Bonte (1992): 468, Brock, C. J. and Batchelder, J., dissenting). In general negligence cases the pregnant woman is not required to conform to a standard of care which is unique to pregnant women and which affords the child-to-be the special protection it needs in utero in order to be born whole. Rather, the pregnant woman is requested to conform with the standard of care imposed on all members of society in order to avoid harm to third parties. Despite the fact that the Dobson case involved a breach of a general duty, and that a separate third party was also injured, and despite the exist- ence of insurance, the Court refused to impose liability. At first glance, those, like myself, who are concerned about enhancing women’s status in society and furthering their equality demands, should applaud an uncompromising stance against imposing a maternal prenatal duty of care in tort. However, based on insights derived from my conceptual and methodological framework, developed in order to incorporate egali- tarian sensitivity into tort law, I submit that such an approach involves two difficulties. First, at times, courts overemphasize autonomy per se as a consideration opposing the imposition of liability, but do not apprehend the specific problem, as I see it, of imposing a maternal prenatal duty of care. It is the encroachment on women’s autonomy, rather than the encroachment on an abstracted individual’s autonomy, that provides us with a cogent reason to oppose an unchecked maternal prenatal duty. Second, this failure to appreciate what is wrong with imposing a maternal prenatal duty might lead courts to a holding which is too broad in its rejection of the duty, and to a result which is likely to be erroneous. As I will show later, a true under- standing of the distributive concern shows that not only do situations exist in which the imposition of such a duty does not run afoul of a distributive- egalitarian concern, but also, according to at least one understanding of it, the distributive concern in fact supports the imposition of a maternal prenatal duty of care. I argue that when liability is limited to the extent of insurance coverage that is actually available, women’s autonomy and well-being are better served by the imposition of liability. A decision denying duty impedes the autonomy of the defendant and of women who are similarly situated, rather than enhancing it. Such a decision, then, well intentioned as it is, throws the mother and the baby out with the patriarchal bathwater. The discussion will proceed as follows. Part I will briefly sketch out a review of the case law and literature dealing with maternal prenatal duties, concentrating on those texts which oppose the imposition of a duty. I posit KEREN-PAZ: DISTRIBUTIVE JUSTICE, TORT LAW AND PRENATAL DUTIES 181 that the main tenor of these writings opposes the duty primarily on autonomy grounds. I argue that opposing a maternal prenatal duty of care requires that a distributive spin be given to the autonomy concern; namely, that it is women’s autonomy that is being compromised. Part II is dedicated to showing how the distributive concern delineates the contours of a desir- able, or at least permissible, maternal prenatal duty of care. I will begin by demonstrating the conditions under which imposing a general duty of care towards the child-to-be does not run foul of the distributive concern. Then, I will argue that when liability is limited to the actual extent of insurance coverage, imposing a maternal prenatal duty of care is in fact supported by a distributive perspective. I. THEORETICAL UNDERPINNINGS: PROVIDING A DISTRIBUTIVE SPIN TO THE AUTONOMY CONCERN THE AUTONOMY CONCERN In general, the arguments in case law and literature opposing a maternal prenatal duty can be divided schematically into three categories. In the first category we find concerns based on the burden such a duty would impose on a potential defendant’s autonomy (Kerr, 1998: 238; Dobson [1999]: 768–9). In this respect, both the ex ante and the ex post effects on autonomy are relevant. The ex ante curtailment of autonomy stems from the chilling effect of potential liability: women would be constrained from engaging in certain activities for fear of being found liable. The ex post curtailment of autonomy occurs when an individual woman is found liable. The sanction imposed on her, even one that is merely financial, limits her autonomy. This claim is based on the understanding that one’s positive liberty, namely the ability to pursue one’s chosen goals and life plans, derives partially, yet substantially, from one’s financial resources. In the second category we find considerations based on concerns over women’s equality (Johnsen, 1986: 620–5; Carroll, 1989: 214; Dobson [1999]: 799–800). In the last category we find considerations, which I will not examine critically in this article, that are based on other concerns, mostly of a pragmatic and consequential nature (Dobson [1999]: 767, 772, 781–2; Paltrow, 1999: 1045). It appears that the autonomy concern is usually considered the most significant and cogent reason to oppose a maternal prenatal duty, and is most often referred to as a con-liability consideration.1 However, often the autonomy and the equality arguments are somewhat conflated. At times, the reasoning is couched within an autonomy discourse, when it seems that at the root of the commentator’s opposition to this duty is its inegalitarian implications.2 In fact, it is exactly such confusion that I would like to eradi- cate with this article. It is not my purpose, however, to engage in a descrip- tive analysis of legal opinions and literature; rather, my ambition here is normative. I would like to suggest that, in and of itself, the autonomy concern 182 SOCIAL & LEGAL STUDIES 14(2) is unpersuasive as a reason to oppose a maternal prenatal duty. In the next section I will explain why a distributive formulation of the autonomy concern presents a more cogent reason to oppose a maternal prenatal duty than the autonomy concern per se. BURDENS, EXCESSIVENESS AND DISTRIBUTION The following analysis will distinguish between two general reasons to oppose a given burden. The first reason is that a duty is excessive independ- ent of other considerations; the second is that it is borne by the wrong people. I will then argue that the imposition of a maternal prenatal duty raises the latter difficulty. EXCESSIVE BURDENS An argument based strictly on autonomy concerns and opposing the imposition of a certain duty on a defendant holds the following: regardless of the relative status of the defendant in society, the imposition of the duty would take such a huge toll on the defendant’s autonomy as to make the imposition of the duty generally undesirable. For example, imposing life imprisonment for a parking violation seems by any standard to be excessive and to encroach on the potential defendant’s autonomy interest under any circumstances. More generally, cases exist where we would oppose the imposition of a given sanction, since we believe that some interests, including an autonomy interest, should be inviolable, regardless of one’s status in society. Therefore, we would oppose the sanction even if: (1) we embrace an egalitarian agenda committed to imposing greater relative burdens on the status, well-being or autonomy of the ‘Haves’; and (2) we believe that on average, the sanction would bring about a progressive result from a distributive perspective, and result in a negative disparate impact on the well off. WRONGFULLY DISTRIBUTED BURDENS By contrast to the previous category, at times a particular burden, including potential liability, should bother us despite the fact that it is not reprehensible in and of itself. It might be that the appropriateness of imposing a burden such as liability derives from the identity of the individual bearing it. For that matter, it might be that the liability should be tolerated only if it is borne solely by certain individuals and not at all by others. A more lenient version, which takes into account practical considerations, would justify a given liability if, on the whole, it is being borne to a greater degree by those whom we believe we can justly so burden. This binary type of analysis can be expanded to include situations in which the distributive effect serves instead as one of many considerations and should be balanced against the others in determining whether liability should inhere. We therefore must examine the desirability of imposing liability by assessing both distributive and non-distributive considerations. Detached KEREN-PAZ: DISTRIBUTIVE JUSTICE, TORT LAW AND PRENATAL DUTIES 183 from its distributive context, a given liability can arguably be either desirable or not. Imposing capital punishment for a parking violation seems wrong per se; some argue that imposing it for murder is justified. However, even those who would otherwise support capital punishment for murder might change their minds if it is proven that capital punishment is inflicted in a racist manner (Blume et al., 1998: 1774). Those who generally support capital punishment for murder but are bothered by its regressive distributive effect must balance the non-distributive considerations, which in their view support the sanction, against its negative distributive effect. Some might accord the former the clinching weight and therefore favour the sanction, while others might oppose the sanction because they accord more weight to the distributive concern. THE MATERNAL PRENATAL DUTY CLASSIFIED Imposing a maternal prenatal duty of care has several drawbacks for women. A typology of these effects should distinguish between: (1) symbolic and practical effects of recognizing a duty; (2) ex-ante and ex-post effects on autonomy; and (3) conforming and non-conforming women. Recognizing a duty is problematic symbolically since it suggests that women are valued only as a means of reproduction rather than as an end in themselves. In addition, recognition of a maternal prenatal duty might result in a second-order autonomy consequence by eroding women’s control over their reproductive capacities, and more specifically, their access to abortion (Johnsen, 1986; Martin and Coleman, 1995; Paltrow, 1999). These negative effects are borne by all women. The practical effect of recognizing a duty is an encroachment upon women’s autonomy during and possibly before pregnancy. With respect to the ex- post effect, only women who are found not to conform with the standard of care applicable to pregnant women will be affected adversely. With respect to the ex-ante effect, seemingly, if the standard is applied correctly, only non-conforming women would bear its sting. However, women’s fear that the standard might be erroneously applied (‘the chilling effect’) and the apprehension that courts might devalue women’s interests and excessively regulate their behaviour during pregnancy (the slippery slope concern) might adversely affect even the autonomy interests of conforming women. I would posit that the difficulty raised by a duty owed by a pregnant woman to her future child is not that the duty is inherently excessive but that it is wrongfully distributed. The burden imposed on the defendants, in itself, is not intuitively so unacceptable – such as life imprisonment for parking violations – as to deny its imposition. By this, I am not claiming that the autonomy implications of imposing a maternal prenatal duty are insignifi- cant. Instead, I argue that, stripped from its distributive context, and taking into account the interests of children in being born whole, the concern for autonomy is not weighty enough in order to reject the imposition of the duty. Autonomy Interests of Non-conforming and Conforming Women The basic approach in tort law is that whenever the physical integrity of the plaintiff is 184 SOCIAL & LEGAL STUDIES 14(2) at stake, a duty of care to the foreseeable plaintiff is virtually automatic; in this respect, the defendant’s claim that the duty entails an excessive burden on her autonomy is disregarded (Rogers, 1998: 91–2). Against this it is argued that the situation in which a mother-to-be finds herself is very different from other situations involving typical defendants in personal injury cases. Due to the utmost level of proximity between the pregnant woman and child-to-be, any action or omission during the pregnancy can be scrutinized (Dobson, [1999]: 770–1). Therefore, the threat of potential liability for any possible act occurring during the 40 weeks, even if limited to a money award, might still extract too high a toll on the autonomy of a mother-to-be. However, as suggested by the case law and literature (even by those who oppose the imposition of a duty (Dobson [1999]: 759)), most mothers-to-be are likely to conform with any reasonably applied and non-malevolent ‘reasonable pregnant woman’ standard of care. Seemingly then, the law only gives its signet to a widely held norm. Women’s autonomy is not compro- mised since they appear to have already ruled out voluntarily what the law now forbids; in this, the legal norm, like the unassuming king from Saint- Exupéry’s The Little Prince commands only the most trivial orders. This challenge – that women’s autonomy is not in fact compromised – is addressed through three responses: the rule’s effect on the autonomy of those women who do not conform (according to common wisdom) with the moral duty to their children-to-be; the apprehension of a slippery slope; and the related concern over a chilling effect. As for the concern regarding the autonomy of non-conforming women, while it is true that their autonomy will be restricted, it is not clear that this autonomy interest need be respected in itself. The autonomy interest of non- conforming women boils down to a demand to preserve their ability to engage in activity that may result in injury