Legal Definitions - prenatal tort

A prenatal tort refers to a civil wrong or injury that occurs to an unborn child (fetus) before birth, but for which a legal claim can be brought after the child is born. Essentially, it's a harm inflicted upon a fetus due to someone else's negligence or wrongful act, leading to consequences that manifest after the child is delivered.

For a prenatal tort claim to proceed, the child typically must be born alive. The legal system recognizes that an unborn child, while still developing, can be a victim of harm that warrants compensation once they are a living person. These claims often involve various types of injuries, including:

• Personal Injury: When a fetus suffers physical harm due to negligence, leading to disabilities or health issues after birth.
• Wrongful Birth: When medical professionals' negligence (e.g., failing to diagnose a severe genetic condition) leads parents to continue a pregnancy that they might otherwise have chosen to terminate, resulting in the birth of a child with significant impairments.
• Wrongful Conception/Pregnancy: When negligence (e.g., a botched sterilization procedure) leads to an unplanned pregnancy and the birth of a child, even if the child is healthy.

Here are some examples to illustrate how prenatal torts can arise:

• Example 1: Car Accident Causing Fetal Injury

  A pregnant woman is driving and is hit by a distracted driver who runs a red light. The collision is severe, and although the woman recovers, her baby is born prematurely with a permanent brain injury that doctors confirm was a direct result of the trauma sustained in the accident. After the child is born, the parents, on behalf of their child, could pursue a prenatal tort claim against the negligent driver for the child's lifelong medical expenses and suffering. This illustrates a personal injury type of prenatal tort, where the child, once born, can seek compensation for harm sustained while in the womb due to another's negligence.

• Example 2: Undiagnosed Genetic Condition

  During a routine prenatal check-up, a couple undergoes genetic screening. The laboratory responsible for analyzing the tests negligently misinterprets the results, reporting that the fetus is healthy when, in fact, it carries a severe genetic disorder that would cause profound disabilities. Relying on these incorrect results, the parents decide to continue the pregnancy. The child is later born with the severe disorder, requiring extensive medical care and lifelong support. The parents could bring a prenatal tort claim, specifically a "wrongful birth" action, against the negligent laboratory. This demonstrates how a prenatal tort can arise from medical negligence that deprives parents of informed choices about their pregnancy, leading to the birth of an impaired child.

• Example 3: Workplace Chemical Exposure

  A pregnant employee works in a factory where, unbeknownst to her, a new chemical used in the manufacturing process is highly toxic and teratogenic (causes birth defects). The employer failed to provide adequate warnings or protective equipment, violating safety regulations. The employee is exposed to the chemical throughout her pregnancy. Her child is later born with severe congenital disabilities that medical experts link directly to the mother's workplace exposure. The child, through their legal guardians, could file a prenatal tort claim against the employer for the injuries sustained while in utero due to the employer's negligence. This highlights how environmental or occupational hazards, when negligently managed, can lead to prenatal tort claims for the affected child.