Prenatal injury refers to such injury that occurs before birth while the fetus develops inside the womb of a mother. Previously, there was a trend of considering an unborn child part of the mother and it was only the mother who could claim compensation for injuries caused to a fetus. Over time, many jurisdictions have crafted scopes for both tortious and criminal liabilities to be claimed by a child for prenatal injuries.

Bonbrest v Kotz (1946) is an early decision in this context in the USA. In this case, the district cour of Columbia, recognised the standing of a child to bring forth a lawsuit for injuries sustained thereby while in the womb. The Bonbrest judgement was later relied on in several other cases.

The UK provides a valuable example of providing legal protection to an unborn child through the enactment of the Congenital Disabilities (civil liability) Act 1976. This Act allows for actions not only on the grounds of injury sustained by an unborn child but also on grounds of an occurrence which potentially affected either parent of the child to have a healthy child. Tortious liabilities on the ground of prenatal injury have also evolved to some extent in our neighboring country, India.

According to section 316 of the Penal Code 1860, whoever causes death of a quick unborn child shall be punished with imprisonment which may extend to 10 years and/or shall be liable to fine. The circumstances of causing such death ought to be such that would otherwise constitute the offence of culpable homicide. Thus, our country provides for criminal liability in case of the death of an unborn child. However, tortious liabilities for injuries to an unborn child still remain an underdeveloped issue here. As a result, cases related to prenatal injuries are rather non-existent in our country. Indeed, prenatal injuries are yet another under addressed area that remind us of the state of tort law within the legal system of Bangladesh and why it requires our attention.

The writer is law student, University of Chittagong.