In Australia, a child who suffers harm because of negligence that occurred while it was in its mother’s womb during pregnancy (in utero), or prior to its conception, may upon being born alive and viable, claim compensation from the person whose negligence caused the harm.
Note: a child’s legal rights crystalise upon birth. Only then may a claim for any harm or loss it has suffered (by way of a next of kin, guardian etc) be brought. Once a cause of action (Court case) is brought, all of the elements of the law of negligence must be satisfied. That is, the child (or rather the person who brings the Court case on his/her behalf) must show that a duty of care was owed, breach of that duty occurred, and the breach caused the harm suffered. These elements are explained in detail in Health Law Central’s section on medical negligence.
Healthcare practitioners must be aware that when diagnosing, treating or advising women and men prior to or of fertile age, that their negligence may not only impact upon their patients but also upon future children conceived and born to such patients.
Parents should be aware that if they think a health practitioner’s actions were negligent and have caused their child harm/loss that they should seek legal advice to further explore the matter.
(Note pre-natal injury may be caused by negligence other than medical negligence too – for example, negligent driving – but on Health Law Central we focus on incidents that may occur in a health context or that have health implications).