Alberta bill to allow prenatal crash victims to sue Moms (November 17, 2005)

New legislation aimed at providing a legal recourse for a child who sustains prenatal injuries as the result of the negligent driving of his or her mother was introduced November 15 in the Alberta Legislature.
Current law already allows a child – after birth – to sue his or her father, another family member or any third party for injuries sustained prior to birth due to negligent driving, according to a press release posted by the Alberta’s department of justice and attorney general.
“Bill 45, the Maternal Tort Liability Act, aims to extend this existing ability, further allowing the child to sue his or her mother in only this very narrow set of circumstances,” says the release.
Alberta’s proposed law relates only to motor vehicle accidents and restricts liability to the extent of the motor vehicle insurance coverage. This will provide protection for mothers by prohibiting claims against them beyond the limits of their insurance policy, the release states.
“It is anticipated that the impact on the insurance industry will be minimal given that the law already allows a child to sue a father or another person, and that these situations arise infrequently.”
According to Alberta Justice Minister Ron Stevens, “it makes no difference to a child with debilitating injuries whether the harm was caused by the father or mother’s crash. Yet the law as it is today draws a distinction, since it provides the ability to seek financial assistance for one situation but not for the other. There is no doubt in my mind that this legislation is in the best interests of families.”
The Supreme Court of Canada indicated in a 1999 case that a province might wish to craft legislation that seeks to change the concept of maternal immunity for this specific situation. “A carefully tailored solution could benefit both the injured child and his or her family, without unduly restricting the privacy and autonomy rights of Canadian women,” the court wrote.
Alberta is the first Canadian province to propose this change. However, the United Kingdom already has a similar law in place.
The government bill is not retroactive. It addresses the same policy area as a private bill called the Brooklynn Hannah George Rewega Right of Civil Action Act first presented to the Alberta Legislature in 2004.
That bill, which is expected to be considered by the Assembly this fall, aims to grant a right for Brooklyn Rewega to sue her mother for injuries sustained prior to birth as a result of a car accident. Her mother, who was five months pregnant at the time, was the driver. Brooklynn was born four months later with severe disabilities.