What is the current state of the law on medical malpractice in cases involving unborn children?

Although the court’s reasons addressed the broad and difficult policy concerns underlying legal duties as among physician, mother, and the infant plaintiffs who were damaged before their birth, the discussions proceeded from a factual context fundamentally different from that here. Although Feldman J.A. in Bovingdon v. Hergott spoke of the doctor owing no duty of care to “the unborn children”, the reasons as a whole make clear that at the time in question, the children were not only unborn, they were unconceived. It is indeed difficult to see how the doctor could have owed them a duty of care, because they were not then in existence. The medical treatment in issue (prescribing a fertility drug), took the case yet further into the metaphysical sphere, because without that drug the infant plaintiffs would never have come into existence.

I do not read Bovingdon v. Hergott as indicating that there is never a duty to an unborn child to make full disclosure of the risks associated with a birth plan to the mother. Rather, the court holds that the doctor owed no duty to the plaintiffs who were not even conceived at the time to inform the mother about drug risks associated with their conception.