Prenatal Harm and the Duty of Care


  • Erin L. Nelson Professor in the Faculty of Law, University of Alberta.



In this article, the author explores the jurisprudence surrounding a contentious area of tort

law: wrongful life claims. These claims focus on the situation in which the physician’s

negligence lies in the failure to provide the child’s parents with the opportunity to prevent

the birth of the child. Historically, courts have been unreceptive to wrongful life claims, and

current Canadian jurisprudence on this issue lacks clarity owing to inconsistent treatment

of these cases by the courts. The author exposes errors in reasoning in two cases decided by

the Ontario Court of Appeal, noting that these cases add to the incoherence of the legal

landscape. She concludes with an appeal for Supreme Court authority or legislation to

clarify the law.