From: Robert H Stevens <>
To: Jason Neyers <>
CC: Robert H Stevens <>
Date: 14/01/2009 16:05:58 UTC
Subject: Re: ODG: Duties to the unborn

> Dear Rob and all:


> But if the baseline position is that the child/fetus has no rights of

> personal integrity until birth then absent the right you posit (of

> healthy birth) then A would be at liberty to injure the child/fetus.

> Once the right you posit is said to exist it appears that A now has to

> restrain his or her actions. In effect, the right you posit is one that

> forces A to benefit the child/fetus by not factually effecting it even

> thought the right to personal integrity says otherwise.


The fact that we cannot rely upon one right (the (standard) Donoghue right

not to have our bodies negligently injured by other people) doesn't mean

that we cannot rely upon another right. I am certainly not suggesting a

positive duty on others that they take steps to ensure the healthy birth

of the unborn with whom they have no relation. I am not liable for failing

to give food to hungry pregnant women.

> What would justify this right of healthy birth?  And how would this

> justify only a right of healthy birth and no other rights to factual

> positions? I can't really think of another situation where we have

> rights that secure us a factual position that our other rights say is

> not protected, absent some sort of  assumption of responsibility through

> contract or otherwise.


I think it is justified for precisely the same sort of reasons all of our

rights are justified. So, if humans were invulnerable I would have no duty

not to injure other people. That is not the world I find myself in. If the

unborn could not be harmed we wouldn't have to be careful not to injure


> Think of a case like Pierson v Post and assume that instead of catching

> the fox, the second hunter merely injured it. Thus when the first hunter

> captured the fox he sued for this factual injury. Your solution seems

> akin to saying that although the first hunter's property rights were not

> injured (since they did not crystallize until capture) the second hunter

> is liable since there is a right of "healthy capture" that the second

> hunter infringed. When phrased this way, doesn't it seem that the law is

> creating a duty on the second hunter to benefit the first (at least in

> the limited sense that he cannot make the fox factually worse than it

> would have been had it come into the first hunter's possession untouched)?


There are many ways in which I can, by my positive action, make you worse

off than you otherwise would be but commit no wrong. One is by competing

with you (or grabbing a fox you were chasing first). These are not cases

of 'failing to confer a benefit'. There is feasance but not misfeasance.

Catching a fox is certainly not "nonfeasance" (ie not doing). Misfeasance

and nonfeasance are not, as a matter of English and logic, opposites.

The right I am suggesting is unusual in one sense: it is only capable of

being infringed by conduct occurring prior to the right coming into

existence, but as Neil demonstrated, we don't worry about that.