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BONBREST v. KOTZ

March 6, 1946

BONBREST et al.
v.
KOTZ et al.



The opinion of the court was delivered by: MCGUIRE

The question raised by the motion is whether an infant through its father and next friend has a right of action springing from the alleged fact it was taken from its mother's womb through professional malpractice, with resultant consequences of a detrimental character.

It is a novel one in this jurisdiction, and judicial opinion, in those where it has been met, *fn1" has held that at common law, in the absence of statute, prenatal injury affords no basis for an action in tort, in favor either of the child or its personal representative.

 This conclusion is predicated, it appears, on the assumption that a child en ventre sa mere has no juridical existence, and is so intimately united with its mother as to be a 'part' of her and as a consequence is not to be regarded as a separate, distinct, and individual entity.

 This rather anomalous doctrine was announced by Mr. Justice Holmes in the leading case of Dietrich v. Inhabitants of Northampton, *fn2" which apparently has been relied upon as dispositive and controlling ever since, *fn3" except in those few cases where recovery was barred on the theory of no contract and, therefore, no duty. *fn4"

 The Court, in the opinion referred to, disposes of the analogy drawn from the common law of property and crimes *fn5" and then adds significantly:

 'Taking all the foregoing considerations into account, and further, that, as the unborn child was a part of the mother at the time of the injury, any damage to it which was not too remote (italics supplied) to be recovered for at all was recoverable by her. * * * ' *fn6"

 But on the assumed facts here we have not, as in the Dietrich case, 'an injury transmitted from the actor to a person through his own organic substance, or through his mother, before he became a person' standing 'on the same footing as an injury transmitted to an existing person through other intervening substances outside him, * * * ' *fn7" but a direct injury to a viable *fn8" child -- the distinction is an important one -- by the defendants in their professional capacities.

 This seems to me to be the solid factual ground on which the two cases stand distinguished.

 It is further to be noted that the Court, *fn9" alluding to what it termed the difficulty of remoteness in predicating a right of action for injury transmitted to a person through what it calls ?* * * other intervening (italics supplied) substances outside him,' has this to say:

 'If these general difficulties could be got over, and if we should assume irrespective of precedent, that a man might owe a civil duty and incur a conditional prospective liability in tort to one not yet in being, and if we should assume also that causing an infant to be born prematurely stands on the same footing as wounding or poisoning, *fn10" we should then be confronted by the question raised by the defendant, whether an infant dying before it was able to live separated from its mother (italics supplied) could be said to have become a person recognized by the law as capable of having a locus standi in court * * * .'

 Here, however, we have a viable child -- one capable of living outside the womb -- and which has demonstrated its capacity to survive by surviving -- are we to say now it has no locus standi in court or elsewhere?

 As to a viable child being 'part' of its mother -- this argument seems to me to be a contradiction in terms. True, it is in the womb, but it is capable now of extra-uterine life -- and while dependent for its continued development on sustenance derived from its peculiar relationship to its mother, it is not a 'part' of the mother in the sense of a constituent element -- as that term is generally understood. Modern medicine is replete with cases of living children being taken from dead mothers. In deed, apart from viability, a non-viable foetus is not a part of its mother. *fn11"

 From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as human being, but as such from the moment of conception -- which it is in fact. *fn12"

 Why a 'part' of the mother under the law of negligence and a separate entity and person in that of property and crime? ...


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