1990-1 RECENT CASES
[Unsigned note drafted by law student Barack Obama]
TORT LAW -- PRENATAL INJURIES -- SUPREME COURT OF ILLINOIS REFUSES TO
RECOGNIZE CAUSE OF ACTION BROUGHT BY FETUS AGAINST ITS MOTHER FOR
UNINTENTIONAL INFLICTION OF PRENATAL INJURIES. -- Stallman v.
Voungquist, 125 Ill. 2d 267, 531 N.E.2d 355 (1988).
Although the issue of a fetus' right to life has received most
prominent attention in the abortion debate, a number of states have
extended protection to the unborn in other contexts, through both
criminal statutes and common law tort doctrines. Indeed, some
commentators have urged states to expand the conception of "fetal
rights" to permit a fetus to sue its mother in tort for prenatal
injuries resulting from the mother's actions during pregnancy.' In
Stallman v. Youngquist,2 the Supreme Court of Illinois rejected such
an expansion. The court concluded that a pregnant woman's interest in
privacy and bodily integrity, as well as the difficulty in
establishing a consistent or just standard of "reasonable" prenatal
care, militated against recognizing a fetus' right to sue its mother
for the unintentional infliction of prenatal injuries. Although the
court in Stallman dealt exclusively with the fetus' capacity to sue
its mother for her negligent behavior during pregnancy, the case
raises the broader policy and constitutional considerations that argue
against using civil liability to control the behavior of pregnant
Ban Stallman was five months pregnant in 1981 when her automobile
collided with another car driven by Clarence Youngquist. Her
subsequently born daughter, Lindsay Stallman, filed suit against both
her mother and Youngquist, and alleged that their negligent driving
resulted in serious prenatal injuries that became apparent at birth.3
1 See, e.g., Robertson, Procreative Liberty and the Control of
Conception, Pregnancy and Childbirth, 69 VA. L. REV. 405, 438 (1983);
Note, Maternal Tort Liability for Prenatal injuries, 22 SUFFOLK U.L.
REV. 747 (1988); see also Beal, "Can I Sue Mommy?" An Analysis of a
Woman's Tort Liability for Prenatal Injuries to Her Child Born Alive,
21 SAN DIEGO L. REV. 325 (1984) (analyzing the extension of third-
party liability for infliction of prenatal injuries, a, well as the
parent-child tort immunity doctrine, to fetal-maternal tort suits).
One state court has already ruled that a fetus has the right to sue
its mother for the negligent infliction of prenatal injury. See Grodin
v. Grodin, 102 Mich. App. 396, 301 N.W.2d 869 (1981). Other writers
prefer to discuss fetal protection in terms of state policy interests,
rather than the concept of "fetal rights." See, e.g., Note, Maternal
Substance Abuse: The Need To Provide Legal Protection for the Fetus,
6o S. CAL. L. REV. 1209, 1223 (1987) [hereinafter Note, Fetal
Protection) ("When a woman has chosen not to obtain an abortion, the
state should be able to assert its right to prohibit conduct likely to
result in injury in utero."). For criticism of the "fetal rights"
concept, based on the dangers such a conceptualization poses to the
constitutional rights of women, see Johnsen, The Creation of Fetal
Rights: Conflicts with Women's Constitutional Rights to Liberty,
Privacy, and Equal Protection, 95 YALE L.J. 59 (1986); and Note,
Maternal Rights and Fetal Wrongs: The Case Against the Criminalization
of "Fetal Abuse," 101 HARV. L. REV. 994 (1988) [hereinafter Note,
2 525 Ill. 2d 267, 531 N.E.2d 355 (1988).
3 See Stallman v. Youngquist, 129 Ill. App. 3d 859, 473 N.E.2d 400
(1984). The plaintiff
[*824] The trial court dismissed Lindsay's complaint against her
mother after finding that the Illinois parent-child tort immunity
doctrine applied to negligence suits between a mother and her fetus.4
Holding that Lindsay should have the opportunity to show that her
mother's actions fell outside the ambit of parental tort immunity
doctrine, the Illinois Appellate Court reversed.5 On remand, the trial
court concluded that the parental tort immunity doctrine did apply to
the facts of the case, and granted the mother's motion for summary
judgment.6 Once again, the court of appeals reversed. The court
partially abrogated the parental tort immunity doctrine to hold that a
fetus, like any minor child, may recover damages in a suit brought
against its mother for injuries resulting from the mother's negligence.
The Supreme Court of Illinois reversed. Writing for the court, judge
Cunningham found it unnecessary to address the issue of parental tort
immunity in ruling that a fetus has no cause of action against its
mother for the unintentional infliction of prenatal injuries.8 In
reaching its decision, the court distinguished such suits from
precedents that allow fetal suits for harms arising from third-party
negligence.9 First, the court pointed out that such causes of action
would establish "a legal duty, as opposed to a moral duty, to
effectuate the best prenatal environment possible,"0 and would render
a mother potentially liable for any act or omission." Not only would
the creation of such a duty make mother and fetus "legal adversaries
from the moment of conception until birth";'2 it would also require
the mother "to guarantee" the health of that potential adversary. 13
Second, the court stated that, whereas holding a third party liable
for prenatal injuries to a fetus "does not interfere with the
defendant's brought suit by her father and next friend, Mark Stallman.
See id. Because the plaintiff sought to recover damages from Mrs.
Stallman's automobile insurance policy, Mrs. Stallman's insurer
controlled her trial defense.
4 See id. at 860, 473 N.E.2d at 40!.
5 See id. at 864-65, 473 N.E.2d at 403-04.
6 See Stallman v. Youngquist, 152 III. App. 3d 683, 685, 504 N.E.2d
920, 922 (1987).
7 See id. at 695-94, 504 N.E.2d at 925-27.
8 See 535 N.E.2d at 355.
9 See id. at 357-58 (citing Amann v. Faidy, 4,5 111. 422, 114 N.E.2d
412 ('953), which recognized a cause of action under Illinois'
wrongful death statute for the death of an infant, who, while in a
viable condition, sustained prenatal injuries due to the negligence of
a third party; Chrisafogeorgis v. Brandenberg, 55 III. 2d 368, 304 N.E.
2d 88 which permitted a wrongful death action on behalf of a stillborn
fetus for injuries suffered in utero as a result of third party
negligence; and Renslow v. Mennonite Hospital, 67 III. 2d 348, 367 N.E.
2d 5250 (1977), which held that a fetus subsequently born alive may
sue for prenatal injuries arising out of an allegedly negligent blood
transfusion to the mother eight years prior to conception).
10 Id. at 359.
11 See id.
13 See id.
[*825] right to control his or her own life," imposing such liability
on a mother "subjects to State scrutiny all the decisions a woman must
make" during pregnancy, and "infringes on her right to privacy and
bodily autonomy."14 Third, the absence of any clear, objective
standard of due care during pregnancy would create the danger that
"prejudicial and stereotypical beliefs about the reproductive
abilities of women"5 might skew jury determinations of liability.
Finally, noting that "pregnancy does not come only to those women who
have within their means all that is necessary to effectuate the best
possible prenatal environment,"16 the court suggested that disparities
in wealth, education, and access to health services would further
prevent the fair application of any legal standard of prenatal care.17
The Stallman court acknowledged the Illinois legislature's power to
establish a mother's legal duty to her fetus, but emphasized the need
for "thorough investigation, study and debate"18 prior to such
legislative enactment. Even in that case, the court argued, the best
way to achieve the laudable public policy of ensuring healthy newborns
"is not . . . through after-the-fact civil liability in tort for
individual mothers, but rather through before-the-fact education of
all women and families about prenatal development."19
Stallman represents a thoughtful approach to an increasingly heated
area of legal controversy.20 The case highlights the unsuitabil-
15 Id. at 360.
17 See id.
18 Id. at 361.
20 Although only one other jurisdiction thus far has explicitly
considered the issue of a fetus' right to sue for prenatal injuries
resulting from its mother's negligence during pregnancy, see Grodin v.
Grodin, 102 Mich. App. 396, 301 N.W.2d 869 (1981), almost all United
States courts agree that a fetus, subsequently born alive, may bring
suits against a third party. See W. KEETON, D. DOBBS, R. KEETON & D.
OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 55, at 368 (5th ed.
0984). In addition, a majority of states now include fetuses who die
in utero as "persons" under wrongful death statutes, see id. at 370 &
n.32, and several have extended homicide laws to cover the intentional
destruction of a fetus by a third party. See, e.g., CAL. PENAL CODE §
187 (West Supp. 1986). Courts have generally imposed criminal or tort
liability on third persons by analogy to the right of action possessed
by minor children. See, e.g., Smith v. Brennan, 31 N.J. 353, 364, 157
A.2d 497, 503 (1960); Evans v. Olson, 550 P.2d 924, 927 (Okla. 1976).
Such "fetal rights" have already served to justify the introduction of
evidence of "prenatal abuse" in proceedings to take custody of newborn
children from mothers, see In re Baby X, 7 Mich. App. III, 293 N.W.2d
736 (1980); court orders compelling a woman to undergo cesarean
delivery when a vaginal delivery threatened the survival of a
thirtynine-week-old fetus, see Jefferson v. Griffin Spalding County
Hosp. Auth., 247 Ga. 86, 274 S.E.2d 457 (1981) (per curiam); and
prosecutions under state child abuse statutes, see People v. Stewart,
No. M508197, slip op. (San Diego County Mun. Ct. Feb. 26, 1987). The
issue of prenatal "abuse" has become increasingly urgent in light of
the growing number of babies born addicted to substances abused by
their mothers during pregnancy. See, e.g., Lewin, When Courts Take
Charge of the Unborn, N.Y. Times, Jan. 9, 1989, at A,, col. 1.
[*826]-ity of fetal-maternal tort suits as vehicles for promoting
fetal health; it also indicates the dangers such causes of action
present to women's autonomy, and the need for a constitutional
framework to constrain future attempts to expand "fetal rights."
The issues raised in Stallman suggest the difficulties of importing
principles applied in fetal-third party suits into the unique realm of
the mother-fetus relationship. Suits by a fetus against third parties
provide an additional deterrent to unwanted intrusions on a woman's
bodily integrity.21 In contrast, fetal-maternal tort suits would have
a negligible deterrent effect on most pregnant women, who already have
a powerful interest in bearing a healthy child.22 Fetal-maternal suits
may satisfy a fetus' immediate compensation interests where the mother
carries liability insurance. However, insurers are likely to pass on
the costs of maternal liability through higher premiums or restrictive
provisions for all women of child-bearing age, and the burdens of
compensating injured fetuses may thereby fall disproportionately on
women as a group.23
The difficulties of administering fetal-maternal tort suits, and the
dangers such liability presents to the constitutional rights of women,
outweigh any putative compensation and deterrence benefits that such
suits might bring. In the context of the care of unemancipated
children, two factors have made courts extremely reluctant to impose
affirmative caretaking obligations on parents.24 First, courts have
21 See Johnsen, supra note 1, at 611.
22 See Note, Maternal Rights, supra note r, at 101 i. The interest in
bearing a healthy child would generally serve as an insufficient
deterrent only when the woman is either unaware of the impact her
behavior has on her child, or because (as in the case of a drug-
addicted mother) she is unable to control her behavior. As the
Stallman court suggested, the solution to the first problem is
prenatal education; the solution to the latter problem involves an
expansion of drug treatment facilities for pregnant women, which
currently remain in notoriously short supply. See, e.g., Sachs, Here
Come the Pregnancy Police, TIME, May 22, 1989, at 104 (reporting that
only five full-time drug-treatment programs accept pregnant women in
California, each with waiting lists of up to six months). In either of
these circumstances, imposing civil liability on mothers may be as
likely to deter the carrying of pregnancies to term as to deter
maternal negligence during pregnancy, and in some circumstances
liability may only discourage prenatal examinations. See Note,
Maternal Rights, supra note 1, at 1011 nn.94-95.
23 Although the increase in automobile and homeowner's insurance has
provided part of the justification for dismantling parental tort
immunity doctrine, "[t]he mere presence of insurance without
additional justification has never before been the basis for
recognizing a cause of action." Beal, supra note 1, at 340.
Policymakers interested in spreading the costs of accidents resulting
in prenatal injuries can, and should, accomplish such goals through
social insurance schemes that will not target women as a class or
infringe on their daily activities.
24 Only California and Minnesota utilize a "reasonable parent"
standard under which a parent may be held liable to his or her child
for failure to perform a broad range of parental duties. See, e.g.,
Gibson v. Gibson, 3 Cal. 3d 914, 479 P.2d 648, 92 Cal. Rptr. 2881
(1971) (holding that a father who instructed his child to get out of
their stalled vehicle on a busy highway was liable for failing to meet
an "ordinarily reasonable and prudent parent" standard); Anderson v.
Stream, 295 N.W.2d 595 (Minn. 1980) (adopting a "reasonable parent"
standard for the failure [*827] to supervise the child adequately
after the child was struck by a car driven by a third party). A few
other states have recognized a limited duty to supervise, see, e.g.,
Petersen v. City of Honolulu, 1 Haw. 484, 462 P.2d 1007 (1969), but
most states have allowed child custody and child abuse statutes to
define minimal standards of parenting. See, e.g., Holodook v. Spencer,
36 N.Y.2d 35, 324 N.E.2d 338, 364 N.Y.S.2d 859 (19).
[*827] recognized the profound difficulties in setting consistent
standards of "reasonable" parental care that can be applied fairly
across a broad spectrum of the population.25 As the Stallman court
rightly observed, fetal-maternal tort suits promise far greater
problems of standard setting, given the tremendous range of pregnant
women's activities that may have a substantial impact on fetal
development.26 Courts have also found that the imposition of
affirmative duties on parents of minor children may encroach upon the
parents' constitutionally protected privacy and child-rearing
interests.27 The physical connectedness between mother and fetus
suggests that fetal-maternal tort suits affect even more fundamental
interests of bodily integrity and privacy, and should thus be subject
to even greater constitutional scrutiny.
Unfortunately, the constitutional framework for analyzing future cases
or legislation remains unclear. Most proponents and critics of the
creation of a fetus' right to sue its mother agree that the approach
taken in the Supreme Court's abortion decisions -- balancing a woman's
right to privacy and bodily autonomy against the state's interest in
protecting the fetus -- provides a starting point for analyzing the
constitutionality of fetal-maternal tort suits.28 Commentators also
agree that courts should weigh these interests differently in cases
where a woman has decided to carry her pregnancy to term, and that the
issue of fetal-maternal tort suits therefore demands a separate
doctrinal framework. For example, fetal-maternal tort suits might
entail far more intrusive scrutiny of a woman's behavior than the
scrutiny involved in the discrete regulation of the abortion decision.
29 On the other hand, the state may also have a more compelling
interest in ensuring that fetuses carried to term do not suffer from
debilitating injuries than it does in ensuring that any particular
fetus is born.30
25 See, e.g., Pedigo v. Rowley, 101 Idaho 201, 205, 610 P.2d 560, 564
26 See Johnsen, supra note 1, at 606-07 (citing evidence that "failing
to eat properly, using prescription, nonprescription and illegal
drugs, smoking, drinking alcohol, expos[ure] . . . to infectious
disease or to workplace hazards, engaging in immoderate exercise or
sexual intercourse, residing at high altitudes for prolonged periods,
or using a general anesthetic or drugs to induce rapid labor during
delivery" all may have deleterious effects on fetal development
27 Several Supreme Court cases have recognized constitutional limits
on permissible state intervention into family relationships. See
generally Developments in the Law -- The Constitution and the Family,
93 Harv. L. Rev. 1156, 1351-57 (1980) (discussing the constitutional
foundations of parents' rights to control the upbringing of their
28 See Johnsen, supra note 1, at 614-25; Note, Maternal Rights, supra
note 1, at 995-1009; Note, Fetal Protection, supra note 1, at 1219-34.
29 See Note, Maternal Rights, supra note 1, at 997.
30 See, e.g., Note, Fetal Protection, supra note o, at 1223. Because a
fetus may be most [*828] vulnerable to a mother's negligent acts
during the early months of pregnancy, see Note, Maternal Rights, supra
note 1, at 998, the state's interest in regulating the mother may be
most compelling at the same time that fetal-maternal tort liability is
most intrusive. See Beal, supra note 1, at 364-65 (noting that, due to
the uncertainty surrounding the diagnosis of pregnancy, '[al standard
which assumes a woman knows when she has conceived may result in the
imposition of a duty on a woman to use care in the treatment of her
body long before conception actually occurs"). In the abortion
context, courts have generally considered the state's regulatory
interest compelling only in the second or third trimester. See Roe v.
Wade, 410 U.S. 113 (i7). But see Webster v. Reproductive Health
Servs., 109 5. Ct. 3040, 3057 (1989) (plurality opinion) (suggesting
that "the State's interest in protecting potential human life" may
extend to the point of conception).
Without the benefit of a clear constitutional pronouncement on these
issues, the Stallman court rightly concluded that, at least in cases
arising out of maternal negligence, women's interests in autonomy and
privacy outweigh the dubious policy benefits of fetal-maternal tort
suits. However, the more difficult cases -- those involving maternal
activities that might be considered intentional or reckless infliction
of prenatal injuries on the fetus -- remain to be decided.31 As these
cases arise, states should avoid adopting constitutionally dubious
laws in pursuit of ill-conceived strategies to promote fetal health.
Expanded access to prenatal education and health care facilities will
far more likely serve the very real state interest in preventing
increasing numbers of children from being born into lives of pain and
31 Discussion surrounding the implications of "fetal abuse" liability
distinguishes those fetal injuries that arise out of the use of
illegal drugs, injuries that arise out of maternal activities that are
legal but subject to state regulation and are known to have a direct
negative effect on fetal development (for example, tobacco
consumption, alcohol consumption, or the use of prescription drugs),
and injuries that arise out of traditionally unregulated activities
that have an indirect or indeterminate effect on fetal well being (for
example, exercise and nutritional intake). See, e.g., Note, Maternal
Rights, supra note 1, at 1006-07. Even some observers who on policy
grounds object to criminal or tort liability for fetal abuse agree
that laws penalizing pregnant women who engage in activities of the
first category would pass constitutional muster if narrowly drawn. See
id. Conversely, some advocates of expanding fetal rights seem hesitant
to permit tort suits for a mother's negligent infliction of prenatal
injuries. See, e.g., Note, Fetal Protection, supra note 1, at 1237.
But see Robertson, supra note 1, at 442 (arguing that the interest in
protecting the unborn child justifies limiting a mother's freedom
through fetal-maternal tort suits for negligent prenatal care).