Ontario’s Non-Existent Duty of Care to Children Injured Preconception

NOTE: The views expressed in this essay are those of the author only.

In Ontario, medical professionals treating pregnant patients do not owe a duty of care toward their patients’ preconception, unborn children. The effect is that children injured as a result of doctors’ negligence prior to their conception are not eligible for compensation to defray the costs of their ongoing or future care, nor are medical professionals held accountable for such errors.

As shall be explored below, the policy justification for this approach, cited and consistently affirmed by the Ontario Court of Appeal (“Court”) is the potential for conflicts of interest arising between a doctor’s duties towards the patient-parent and any potential duty towards an as yet to be conceived, future unborn child. However, as per Justice Fairburn’s meticulous dissent in Florence v Benzaquen, 2021 ONCA 523, this policy justification is not well-supported, because the leading case law can easily be construed more liberally, as in fact providing an opportunity for the imposition of a duty of care to preconceived, future unborn children. An approach could be developed which addresses the concerns over conflicts, while still allowing children injured preconception to recover damages. Given the interests of vulnerable children at stake, it is hoped that this opportunity will eventually be availed upon sooner rather than later.