That Tort, Alas, Wasn’t Mum’s Law

Lisa & Angus (c)

Legal decisions are the trees we see out the window as we drive along the rugged legal landscape. Cases that have involved mothers are forest stands dotted along the way. “Mothers & The Law” has not been full on declared as an area of legal expertise in the academe to my knowledge, but it is an area that is ready for it.

This is not to say mothers & the law have been ignored (just think about Professor Dorothy Roberts work!) no- it’s just that our legal concerns have not yet been identified as “a thing” more broadly in scholarly legal domains. The proof of this was exposed in my old paperback of “Mothers on Trial” by Phyllis Chesler. The pic below is of my care-worn paperback copy, which I bought in 1992. Chesler’s written other important books, too of course (Women & Madness was amazing). https://phyllis-chesler.com/

My old copy of Phyllis Chesler’s inspiring book

In Blogging this morning I’m going consider just one small area of law involving women that abut on mothering issues – those cases involving women who were sterilized without their consent. Leilani Muir’s case in Canada is one example of this and a case that garnered a great deal of attention in this country. She wanted to have a child and that choice was taken from her. The Muir case however is famous in law as a disability rights case within the legal context of institutionalization, and not as a mothering rights case per se. This fact points to the issue of how our issues can vanish in how legal stories are told. See Muir v. Alberta, 1996 CanLII 7287 (AB QB), <http://canlii.ca/t/1p6lq>, retrieved on 2019-12-02

I’m not focusing on Muir here, though. But rather I’m going to focus on an American case called Robinson v. Cutchin, 140 F. Supp. 2d 488 (D. Md. 2001). It caught my attention in an article by Courtney Sriwatka in the Cardozo Journal of Law & Gender and so I thought I’d Blog a bit about it.

The circumstances of Glenda Ann Robinson’s (and her husband’s) lawsuit were quite different from those of Leilani Muir. The Robinson case involved Glenda, a woman who was a mother, and who, sued her doctor & the hospital he worked out of for damages for a harm done to her. The doctor had performed a tubal ligation on Glenda after the birth of her sixth child. Understanding (incorrectly) that Glenda had consented to this additional procedure, the doctor sterilized her during an emergency C-section.

Glenda did not learn about this until she tried to conceive again, unsuccessfully.

The lawsuit did not go in the mother’s favour. Finding that Glenda was not entitled to sue for damages, the court commented on the fact that Glenda Robinson had 3 children prior to her marriage and also had 3 children with her husband. Legally relevant?

The Court went on to deny Robinson’s claim of battery, and asserted that even if the sterilization occurred without Robinson’s consent, “[tlhe touching by the doctor was not harmful as it did not cause any additional physical pain, injury, or illness” other than what was caused by the C-Section.” Accordingly, it ruled that what happened “did not offend Mrs. Robinson’s reasonable sense of personal dignity” as required in the area of law she was suing in.

Author Courtney Sriwatka notes that the judge was skeptical about the very concept of “reproductive injury.” And that he opined that it did not deserve the same level of recovery as other bodily injuries. Such views are a view from somewhere, but not from mothers who have experienced motherhood related harms.

Sirwatka argues that “such a skeptical view runs contrary to the theory that reproductive injury can be characterized as bodily injury, since it relates to organs within a woman’s body.” Sirwatka further notes, it is unlikely a court likewise conclude that denial of the use of an organ in other contexts does not comprise tortious conduct.

And Here’s The Rub. Sirwatka states the notion that Glenda’s having been sterilized having had no effect on Glenda’s personal dignity “ignores the fact that Mrs. Robinson prided herself on being a mother, and that Dr. Cutchin deprived her of the opportunity to have more children.” (at 117 of Sirwatka’s article). Her comment resonates with so many other cases that have come to my attention over the past several years.

The court moreover did not permit Glenda’s claim of intentional infliction of emotional distress claim to be heard by a jury, finding that the doctor’s conduct wasn’t sufficiently extreme or outrageous to meet the standard for the tort of intentional infliction of emotional distress in that jurisdiction.

Sirwatka states that in dismissing cases brought by mothers in regards to injuries they experience that some judges have thus marked the particular claims of mothers as unworthy of the courts’ resources.

Glenda Robinson was Law’s Mum. But the tort she sought to wield wasn’t alas, Mum’s Law.

Women’s claims within the framework of negligent or intentional infliction of emotional distress, have been plagued, argues Sirwatka, by various obstacles to recovery, which have historically privileged physical harms over emotional and relational injury. The black and white photograph above is of my friend Lisa and her then young son Angus (which I took and which I developed myself in a dark room on a tropical island in another lifetime) captured a unique status, one that is worthy of a range of robust tort claims. It’s time.

In Canada Muir prevailed in her claim against Canada (2002) where Robinson in the US did not (2001). Different facts, different laws, different jurisdictions. Same harm.

In Canada – hopefully – we now have Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16664/index.do which does allows for claims of mental harms – without DSM labels – in Canada. Saadati is a hopeful decision for litigating mothers, including for caregiving mothers who may wish to advance such claims in relation to caregiving harms.

It remains to be seen if Saadati can be taken up by mothers to get monetary remedies in the face of conduct that’s harmful in their unique status as mothers providing complex care. And while Glenda Robinson did not prevail, her case lives on. We can learn from what it offers.

I will return to the ‘will-be-happening’ matter of mothers, care and tort law in another Blog Post. Promise!

The Glenda Robinson case was sourced from: Courtney Sirwatka’s brilliant “Unlikely Partners: Tort Law as a Tool for Trans Activism” (2013) 20 Cardozo Journal of Law & Gender,1, 111