¹ The court of Piacenza held in a judgment dated 31.7.1950 (Foro it, 1951, I, 981) that parents are liable for transmitting the diseased condition (syphilis) to the child—by causing his birth. A similar, though not identical, case was decided by the Schleswig Oberlandesgericht in a judgment dated 18.10.1949 (Neue jur. W och., 1950, 388), where the plaintiff's father had infected the mother with the disease before conception and had continued intercourse with her. The claim of the child, born diseased, was recognized. A contrary decision was given by the German Bundesgericht on 14.6.1951 (Juristenzeitung, 1951, 758). The German Supreme Court remarks also that had the action been filed against the father for transmission of the disease by the act of conception itself, the defendant could have argued in his defence that if it were not for the act there would be no New York, to hold it liable for an institution for which it was responsible, a Manhattan hospital, which failed to prevent a rape from which the birth resulted. plaintiff. In the case of Zepeda v. Zepeda, the Illinois Court of Appeal dismissed an action by a bastard against his father (41 Ill. App. 2d 240, 190 N.E. 2d 849) although it recognized in its judgment the plaintiff's cause of action.

² See Williams v. State of New York 46 Misc. 2d 824, 260 N.Y.S. 2d 953 (Ct. Cl. 1965).

^2a As regards bastards (mamzerim).

³ See n. 6 below. The attitude of our sages even to other fears is characteristic. To King Hezekiah's fear that he would bear unvirtuous children (as revealed to him by the “Holy Spirit”) Isaiah answers with words of rebuke: “What have you to do with the secrets of the All-Merciful? You should have done what you were commanded and let the Holy One, blessed be He, do that which pleases Him.”(Berachot, 10a). In the passage from Sotah 12a referred to later (in para. 2) Amram, the future father of Moses, is admonished on the ground, inter alia, that in refraining from bearing sons (out of fear of Pharaoh's decree) he denied them the World to Come. Moreover, even the birth of a bastard—notwithstanding the offence thereby committed—is deemed by the Rabbis as a fulfilment of the religious duty of procreation: see Shulhan Aruch, Even-HaEzer, I, 6 (Rema); Beth Joseph (reporting Rashba; novellae of Rashba on Yevamoth, 22).

⁴ See e.g., sec. 22 of the Capacity and Guardianship Law, 1962, 16 L.S.I. 106.

⁵ See the considerations of Augustine that unhappy life is still better than no existence (Sancti Aurelii Augustini Opera, Sect. VI, Pars III, De Libero arbitrio libri tres, rec. Green, G. M. in Corpus scriptorum eccles. latinorum, LXXIV, Vindobonae, 1956Google Scholar, lib.III, cap. 7, pp. 106–07: “‘… eligerem non esse potius quam ut cssem miser…’; ‘…mavis tamen esse vel miser quam onmino non esse…’”).

⁶ The Catholic church dealt with the question, particularly at the time of Alexander III (1159–1181), in connection with a husband or a wife suffering from leprosy, and decided on principle in favour of procreation. Sec Alexander III, De contagio leprosorum, c. 2, X, IV, 8, and on the subject, Gasparri, De matrimonio, Roma, 1932, II, 178. See also Aquinas, Thomas, Summa Theologica, 4 dist. 32 q. un. a. 1 ad. 4 m m.Google Scholar The stand taken by Israeli, Rabbi S. (“Marriage in the Case of Dangerous Family Disease”, Sefer Amud HaYemini, Tel Aviv, 1966, 311–17Google Scholar) is perhaps characteristic of the influence of tradition upon religious people even today. Sec also, “The Question of Artificial Abortion Where the Child is Suspected of Being Severely Defective”, ibid. 307–11. In considering the question whether in such a case one may resort to artificial abortion and coming to an affirmative conclusion, though taking into account the pain and well-being of the individual more than would have been usual in the past, he regards the suffering which would result from the reverse solution from the point of view of the parents alone.

⁷ On the tendency in our times to extend remedies in tort to interests not formerly protected, see e.g. Albertsworth, , “Recognition of New Interests in the Law of Torts” (1922) 10 Cal. L.R. 461, 491Google Scholar; Keeton, , “Creative Continuity in the Law of Torts” (1962) 75 Hvd. L.R. 463, 466Google Scholar; Restatement of the Law of Torts, I. St. Paul, 1934, p. 4; Esser, J., “Responsabilité et garantie dans la nouvelle doctrine allemande des actes illicites” (1961) Reu. internat, de dtoit comparé, 484.Google Scholar And generally on the growing demand for compensation in respect of every risk: Rinck, , Gefährdungshaftung Göttingen, 1959, p. 7Google Scholar (“Der Bürger des XX. Jahrhunderts ist nicht mehr bereit, gefährlich zu leben”).

⁸ Plascowe, Morris, “On Action for ‘Wrongful Life’” (1963) 38 N.Y.U.L.R. 1078 at 1080.Google Scholar See also Carr, G. E. (1966) 12 Howard L.J. 179 at 184.Google Scholar

⁹ See in England (concerning the immunity as between spouses) Kahn-Freund, , “Inconsistencies and Injustices in the Law of Husband and Wife” (1952) 15 Mod. L.R. 133CrossRefGoogle Scholar; Williams, Gl., “Some Problems of the Law of Torts” (1961) 24 Mod. L.R. 101–02CrossRefGoogle Scholar; Law Reform Committee, 9th Report (Liability in Tort between Husband and Wife) 1961, Cmnd. 1268. And in America (concerning the immunity in both cases) Prosser, , Law of Torts, 3rd ed., 1964, Ch. 24, p. 879 ff.Google Scholar, 883 ff., 885 ff.; Harper, & James, , Law of Torts, I, 1956, §810–11, p. 645 ff.Google Scholar, 650 ff.

¹⁰ As in Israel whose laws have never accorded immunity to parents and where the immunity of spouses is about to be abolished.

¹¹ Note that even within the above rule of parental immunity, cases such as Zepeda and Williams would not be covered in the absence of family life.

¹² Sec Allaire v. St. Luke's Hospital (1900) 184 111. 359, 56, N.E. 638 and Bell J.'s words of dissent in the case of Sinkler v. Kneale (1960) 401 Pa. 267, 277–78: “The next step will be the allowance of a suit by a baby against its mother and/or father … for shock of its nervous system or an allergy or feeble mindedness or a malformation and for every conceivable defect or disease as the alleged result of negligently or recklessly driving…, or against its mother for nervousness, shock and every imaginable injury or disease resulting from her playing golf…. Why create and greatly increase litigation and give new causes for family discord?” On the question of the child's claim against his mother, in particular from the technical-medical point of view, see C.A.L., “The Impact of Medical Knowledge of the Law Relating to Prenatal Injuries” (1962) 110 U. Pa. L.R. 554, 583–86.Google Scholar

¹³ But Kerr, J. M. in his article “Action by Unborn Infant” (1905) 61 Cent. L.J.Google Scholar describes the remark in Allaire's Case, above, as “manifestly a non sequitur”.

¹⁴ See also Elia, in Foro it., 1951, I, 987–88.Google Scholar

¹⁵ Cf. Zepeda v. Zepeda, cit., 858: “Encouragement would extend to all others born into the world under conditions they might regard as adverse”.

¹⁶ Ibid.Cf. also G. E. Carr, loc. cit.

¹⁷ This does not mean, needless to say, that the law should ignore them. On the contrary, it should combat that inferiority, i.e. the prejudice as well as its manifestations or institutionalization, with all the means at its disposal, such as sec. 4 of the Defamation Law, 1965.

¹⁸ In any event, the apprehension expressed in the Zepeda Case that damage might be claimed “for being born into a large and destitute family” is without substance; money cannot be exacted from the poor!

¹⁹ The judges were indeed not unaware of the contradiction (ibid. 857–59) but it is more glaring than they realized. Their decision does not result only, as they thought, in a finding that there was injuria sine damno—a familiar situation in AngloAmerican Law whenever the judge awards nominal damages alone. The present case goes beyond this situation. The judges speak of an existing tort (859) but also of the possible creation of a new tort (858) were the plaintiff's claim accepted.

²⁰ Resulting from sec. 55 of the Civil Wrongs Ordinance and the definition of “child” in sec. 2. The origin of the rule is the English case The George and Richard (1871) L.R. 3 Ad. & E. 466.

²¹ Cf. Winfield on Tort, 7th ed. by Jolowicz, and Lewis, Ellis, London, 1963, p. 179–80Google Scholar.

²² See Kine v. Zuckermann (1924) 4 Pa. D. & C. 227, 230.

²³ See the Zepeda Case at 853–55, quoted in part later in the text. Even Holmes J., in his judgment denying the rights of the injured embryo, conceived arguendo the possibility of “conditional prospective liability in tort to one not yet in being”: Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 16 (1884).

²⁴ As against the manner in which the question is posed e.g. in Clerk, & Lindsell, , Torts, 12th ed., 1961, p. 702Google Scholar.

²⁵ Torts, 3rd ed., 1963, p. 110.

²⁶ Ibid.Cf. G. E. Carr, loc. cit.

²⁷ Cf. James, F. Jr., “Scope of Duty in Negligence Cases” (1953) 47 Nw. U.L.R., 778, 788.Google Scholar

²⁸ Some cases, it is true, dealing with nervous shock, have relied on the assumption that there is no duty except toward persons whose existence was known to the tortfeasor. But because, in other circumstances, such knowledge is certainly not required, we cannot but agree with Fleming that this was a temporary device to reduce the scope of the action in a novel situation. See Fleming, J. G., Torts, 2nd ed., 1961, p. 148.Google Scholar For the same argument in connection with an embryo, see Walker v. G.N.Ry. of Ireland (1891) 28 L.R. Ir. 69.

²⁹ Bundesgericht, , 20.XII.1952, Juristenzeitung, 1953, 307.Google Scholar

³⁰ See e.g. Walker v. G.N.Ry. of Ireland (1891) 28 L.R. Ir. 69 per Johnson, J., and the American cases Drobner v. Peters (1921) 232 N.Y. 220, 133 N.E. 567Google Scholar; Snoiv v. Allen (1933) 227 Al. 615; Dietrich v. Northampton (1884) 138 Mass 14, 52 Am. Rep. 242; Lipps v. Milwaukee Elec. Railroad (1916) 164 Wis. 272, 159 N.W. 916; Allaire v. St. Luke's Hospital (1900) 184 Ill. 359 56 N.E. 638; Magnolia Coca Cola Bottling Co. v. Jordan et ux. (1935) 124 Tex. 347, 78 S.W. 2d 944.

³¹ Cf., e.g., Note in (1949–50) 63 Hvd. L.R., 173 at 174–75; Salmond on Torts (11th ed., 1953) 390; (14th ed. 1965) 622; James, F. Jr., “Scope of Duty in Negligence Cases” (1953) 47 Nw. U.L.R., 778 at 788.Google Scholar

³² Winfield (cit. 176, 181) also deals with the ex post facto considerations, but in a different sense, that at the time of the act the potential defendant cannot be aware of his duty towards a future plaintiff although someone in possession of all the facts relating to the present situation could say so. On the other hand, as regards damage generally and in connection with our problem, even a person in possession, at the time of the act, of all the relevant facts could not assert the existence of any concrete duty. We therefore use the expression ex post facto in a more emphatic sense. The duty existing ex post facto according to Winfield may also be a purely nominal duty, in the light of the considerations set out here in the text.

³³ Or his existence as a persona, when this existence is recognized, even before the birth—and not conditioned upon the birth taking place in the future—according to the mentioned trend of American case law.

³⁴ See different trends in Schmidt, R., in Juristenzeitung, 1952, 167Google Scholar; 1953, 307; Elia, op. cit., 989; and in the case of Kine v. Zuckerman (1924) 4 Pa. D. & C; 227,230, although a positive conclusion is reached, this consideration is not ignored (“it is true that in the present case the child was born with the injury.”) See also the remarks of Duckworth C. J. in the case of Hornbackle v. Plantation Pipe Line Co.(1956) 212 Ga. 504, 505: “The majority ruling allows the baby to sue for injury,not to itself, for it is not in being at the time of the injury and hence could not have suffered personal injury …”.

³⁵ See the consideration discussed in the article “On the Distinction between Damnum Emergens and Lucrum Cessans” in our Studies in Israel Private Law, Jerusalem, 1966, p. 116 sqq.

³⁶ Cf. Salmond on Torts, 14th ed., cit., §222, p. 764.

³⁷ But Demogue & Lepaulle (1933) Rev. trimestr. de droit civil, 1333–34, dealing with the Canadian case of Montreal Tramways v. Leveille (1933) 4 D.L.R. 337, opine that (according to French law), in the case of a person born after suffering such injury, in embryonic state, and who, as a result of the defendant's fault, will be incapable of walking at the normal age, the damage will commence only at the time when were it not for the injury, he might be expected to walk, and will continue de die in diem.

³⁸ James, Fl. Jr., (1953) 47 Nw. U.L.R., cit., 789Google Scholar; Harper, & James, , Torts, 2, 1956, §18.3Google Scholar; Fleming, J. G., Law of Torts, 2nd ed., 1961, p. 147.Google Scholar

³⁹ One writer, disagreeing with this test of expediency, makes the parallel statement: “Protection from tortious injury should be afforded an interest in being born alive…”; Del Tufo, , “Recovery for Prenatal Torts: actions for Wrongful Death” (1960) 15 Rutgers L.R. 61 at 77.Google Scholar

⁴⁰ See e.g., Corner, G. W., Ourselves Unborn, an Embryologist's Essay on Man, Yale Univ. Press, 1964, 1Google Scholar; Herzog, A. W., Medical Jurisprudence, Indianapolis—N.Y. 1931, §§860–975.Google Scholar

⁴² For other cases in which our question may arise, see para. 2 above. Additional examples are the case of a child against a person (other than one of the parents) who induced one of the parents to marry by concealing from him facts which would result in the offspring being affected by certain disabilities; or against a doctor who failed to warn the parents that their offspring were likely to be diseased.

⁴³ See also, e.g., Gordon, D. A., “The Unborn Plaintiff” (1964–65) 63 Mich. L.R. 579 at 615CrossRefGoogle Scholar, who says, in the light of the arguments in the Zepeda Case: “It therefore seems that a congenitally syphilitic child could have a right of action arising from the same act by which it is conceived.”

⁴⁴ P. 852.

⁴⁵ Ibid. 857. See also the Note in (1964) 49 Iowa L.R., 1005, 1007.

⁴⁶ Williams v. State of New York, cit., 15.

⁴⁷ See the Note “Compensation for the Harmful Effects of Illegitimacy” (1966) 66 Colum. L.R., 127, 138.

⁴⁸ For example, where the father is infected after the conception.

⁴⁹ Cf. A. Candian in Temi, 1952, 119.

⁵⁰ Cf. Rescigno, P., “11 danno da procreazione” in Studi giuridici in memoria di F.Vassalli, II, Torino, 1960, p. 1337, §10.Google Scholar

⁵¹ Sec the Note in (1964) 49 Iowa L. R., 1005, sec also the Note in cit. (1964) 77 Hvd. L.R. 1351: “The plaintiff's action should not…be based upon any wrongfulness in his being conceived but upon the legally disapproved circumstances under which his parents' intercourse took place.”

⁵² Ibid., 1009–10.

⁵³ This is the moral of the story in the Zcpeda Case, a weighty conclusion because a) when deciding as they did the judges did not conceal their dissatisfaction and their feeling that they had not done justice to the plaintiff, and b) they did not, on the other hand, indicate that they were fully aware of the analytical difficulty in reaching an affirmative solution on the basis of positive law.

⁵⁴ Williams v. State of New York, cit., 4.

⁵⁵ Including, naturally, the one whose paternity of the claimant cannot be proved.

⁵⁶ This question may be complicated by a number of considerations. If legitimation is possible only by undergoing marriage according to law, the question arises if it is right, from the point of view of “public policy”, to force a person into an undesired marriage by the sanction of a claim for damages. This aspect of the problem is hinted at in the Note in (1960) 66 Colum. L.R. 127, 138, as against the view in(1964) 9 Utah L.R. 187, 190–91. The question is more acute when the inducement is to divorce a present spouse in order to marry the second parent of the child. See D.M.D., , “Illegitimacy Held Not Actionable as a Tort” (1964) 9 Utah L.R. 187 at 190–91.Google Scholar

⁵⁷ In other cases the liability of parents under sec. 50 will coexist with that under sec. 22 of the Capacity and Guardianship Law, 1962. Frequently their liability for damages under sec. 50, as far as bodily injury to the child is concerned, will coexist with their liability for maintenance which clearly also includes medical expenses.

⁵⁸ Although Mishna Kiddushin, XIII, 3, Gemara 69a, indicates how illegitimate children (mamzerim) may be legitimated, this is not practical today as it subsumes the existence of bondage. In any event the way is open only to the child itself and not to the parent as such (who is not himself illegitimate). Nor is the way suggested by Cittin 33a, Tosafot ad loc. open to the parents of the illegitimate child. (See Tosafot sub verba “the Rabbis annul his betrothal”; and it is doubtful whether it will help even if they may induce the woman's husband to annul his marriage retrospectively, as stated in the passage mentioned. These ways always deal with subsequent legitimation. It is also possible that a bill of divorcement could be granted to the wife in good time, and thereby prevent the child from being born illegitimate. Even such possibilities which were in fact open to the parents are worthy of consideration for the purpose of our question.

⁵⁹ See also the considerations advanced in (1964) 9 Utah L.R. 187 at 190–91.

⁶⁰ [1941] 2 All E.R. 165.

⁶¹ A criminal sanction could also be considered. But such a solution is not devoid of dangers—including that the criminal sanction would serve (more than the civil liability) as an inducement to commit other mischiefs (such as infanticide, abandonment and abortion).

⁶² Cf. Iowa L.R. cit., 1009–10.

⁶³ Where a claim for negligence lies under existing law, in our view (see para. 10), two alternative remedies would present themselves, not completely identical since one is based on the procreation and the other on a separate act or omission.