타인의 불법행위로 태아가 사망한 경우 가해자의 민법상 책임여부

This article discusses the rights of living fetus to bring prenatal injury claims against their mothers for their physical or mental damage. This topic is uncertain at best and the courts that have wrestled with this issue have failed to create a consistent body of law. However, the question continues to appear and this growing trend of claims against mothers for actions taken while pregnant necessitates a thoughtful discussion of the benefits and consequences of imposing maternal liability. When deciding questions of liability for conduct committed by 3rd party, courts are faced with a choice between fetal and maternal rights. Because the law regarding fetal rights remains underdeveloped in comparison to other legal questions, courts are often faced with little or no guidance when making these decisions. The question of fetal personhood is not limited to criminal, tort or constitutional law alone. Rather, the developing nature of this field of legal theory creates a circumstance in which all fields of law are interwoven. After the wrongful death of a viable fetus was recognized as a cause of action in tort, several jurisdictions made the segue into criminal law by punishing crimes against viable fetuses. Therefore, as decisions may affect all areas of law, it is important that courts carefully consider the impact of their decisions. Fetal rights activists support the recognition of fetal rights as a benefit for society, promoting healthy babies and justice for children born with physical or mental damage due to the tortious acts of another. However, women’s rights activists put forth the argument that deciding questions of conflict between fetal rights and women’s rights is a zero-sum game, claiming that for every additional right held by unborn children, the liberty of the pregnant women who carry them is impeached. A study of the existing law in the area of fetal rights vs. maternal rights suggests that recognition of fetal rights may result in harm to the rights of women to such an extent as to outweigh any benefits from maintaining a cause of action for maternal prenatal torts. For reasons of personal autonomy and public policy, this article takes the position women should not be found liable to their children for prenatal injuries which result in physical or mental damage.