On Mothers,Babies and Bathwater: Distributive Justice,Tort Law and Prenatal Duties

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.