Prenatal Harm and the Duty of Care

In this article, the author explores the jurisprudence surrounding a contentious area of tortlaw: wrongful life claims. These claims focus on the situation in which the physician’snegligence lies in the failure to provide the child’s parents with the opportunity to preventthe birth of the child. Historically, courts have been unreceptive to wrongful life claims, andcurrent Canadian jurisprudence on this issue lacks clarity owing to inconsistent treatmentof these cases by the courts. The author exposes errors in reasoning in two cases decided bythe Ontario Court of Appeal, noting that these cases add to the incoherence of the legallandscape. She concludes with an appeal for Supreme Court authority or legislation toclarify the law.