The law accords an individual the right to sue for damages sustained in utero when these damages are the result of what would otherwise be described as criminally negligent treatment. Recent court actions involving children subjected to the influence of thalidomide during certain critical stages of their fetal development 1 make this only too clear. 2 At the same time, however, the law also permits abortion: the deliberate and intentional killing of fetuses at precisely those stages of their development at which thalidomide damage would be sustained were the drug to be administered. 3 In adopting these two stances, the law appears to find itself in a position of conflict. For the right to sue for damages is reserved solely for those individuals which in one sense or another are persons; 4 and in taking a favourable stance in the thalidomide cases, 5 the law seems to be operating on the principle that those individuals who suffer morphological damage as a result of exposure to the drug in fact enjoyed the status of persons at that particular time. On the other hand, in permitting abortions to occur at that particular stage of fetal development, the law seems to be operating on the principle that these individuals are not yet persons; 6 for otherwise, the act of abortion would be one of murder.
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E. H. W. Kluge, “The Right to Life of Potential Persons”, Comment, (1976-1977) 3:3 DLJ 837.