Remy v. MacDonald

440 Mass. 675, 801 N.E.2d 260 (2004)



One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive. It is not just a pregnant woman alone who may be harmed by the tortious act of a third party, but also the fetus, whose injuries become apparent at its birth. There is nothing indicating that this rule is intended to suggest a legal right, never before recognized in law, for a fetus to bring a claim of negligence against its own mother.


Plaintiff child sued defendant mother for damages based on defendant’s alleged negligence in a car accident that occurred while plaintiff was in utero. Allegedly, as a result of plaintiff's premature birth due to the accident, plaintiff suffered from respiratory problems. The trial court granted summary judgment in defendant’s favor. The Supreme Judicial Court of Massachusetts affirmed the trial court’s judgment.


Did defendant mother, a pregnant woman, owe a legal duty to plaintiff child, who was in utero, to refrain from negligent conduct that could result in physical harm to plaintiff?




No set of clear existing social values and customs existed, and no settled social policy could be identified, to justify imposing a duty upon defendant mother with regard to the unborn child. Treating the fetus as a separate person with rights hostile to and ascertainable against defendant would have been a legal fiction with profound social implications and far reaching unforeseen legal consequences. There were inherent and important differences between a fetus and a child that prohibited the tort liability of one who was still biologically joined to an injured fetus.

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