1. Objectifs

Intentions :
In this article, the author argues that «[t]ort law should play a role in making clear that women’s reproductive choices are valued and should be protected, and that deliberate or negligent interference with them constitues recognizable and compensable harm. [...] Instead, actions for recovery for injury to reproductive decision-making have given rise to confused and obfuscating jurisprudence and anti-choice legislative initiative [...]» (pp.178-179)

2. Méthode

Échantillon/Matériau :
Données documentaires diverses

Type de traitement des données :
Réflexion critique

3. Résumé

«Tort law is one of many legal locations in which women’s reproductive capacity is used to justify their exclusion from protection that otherwise would be available, absent the female gender of the claimant. [...] Courts adjudicating tort claims have shown a particularly intransigent resistance to recognizing a right to compensation where the injury occured prior to conception or during pregnancy, and the damage experienced was the birth of a baby. [...] The costs of child rearing and family disruption arising from the birth of an unplanned, injured or disabled child fall primarily on women. [...] Tort actions brought for compensation in such situation, variously described as actions for wrongful birth, wrongful pregnancy or wrongful life, show a remarkably unsettled, variable and fundamentally resistant jurisprudential and legislative life both in common law and in civil law juridictions.» (p.162) By examining several cases from Quebec, Canada and elsewhere, the author shows that courts’ responses to the compensation claims made by women «[...] reflect the same hegemonic assumptions about the family, and women’s place in the family, as do other locations of law’s partnership in women’s subordination.» (p.163)