Bonbrest v. Kotz - 65 F. Supp. 138 (D.D.C. 1946)

Rule:

A child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother. 

Facts:

The child suffered prenatal injuries and filed a lawsuit against the defendant for those injuries. Defendant filed a motion for summary judgment contending that because the child had not been born when the injury occurred, there was no basis for a tort action. 

Issue:

Did an unborn child have a right to pursue a tort action for prenatal injuries springing from the alleged fact it was taken from its mother's womb through professional malpractice, with resultant consequences of a detrimental character?

Answer:

Yes.

Conclusion:

The court refused to grant summary judgment to defendant, holding that where the child was viable at the time of the injury, common law that held that an unborn child had no juridical existence with regard to tort actions did not apply. The issue whether an unborn child had a right to pursue a tort action for prenatal injuries was a question of first impression for the court. The court questioned the reason for a distinction between tort law that considered an unborn child part of its mother and not a separate person and property law that considered an unborn child a human being from the moment of conception. The court found that where the child was viable, it was not part of its mother and therefore it should have its own right of action for prenatal injuries. If the child were not allowed to pursue such an action, the child would have no remedy for the injury it suffered.