Is the Unequal Treatment of Maternal and Paternal Liability Under the Congenital Disabilities (Civil Liability) Act 1976 Justified?

Abstract

Under the Congenital Disabilities (Civil Liability) Act 1976 (CDCLA) a child born disabled as a result of an occurrence prior to its birth can bring a claim against the individual responsible for that occurrence. Significantly, mothers are exempt from liability (except in relation to negligent driving) but fathers are not. Since the CDCLA came into force in 1976, there have been significant shifts in the landscape in which it operates: a more gender-neutral model of parenting; transmission of an infection to a sexual partner can be a criminal offence; and growing evidence regarding the impact of prenatal events. In addition, there is a trend for presenting prenatal harm as a problem of individual behaviour. This article presents a timely consideration of the potential for parental liability under the CDCLA and asks whether restricting the exemption of parental liability to mothers but not fathers can be justified. It is argued that the reasons for unequal parental liability in relation to gestational harm are not sufficient to justify restricting the broad exemption to mothers but not fathers and a change in the law is required to bring the CDCLA up to date with advances in the criminal law, society, and medical science.