concurring specially: In this case the defendant filed a detailed motion to dismiss on the basis that “New Hampshire law has not specifically adopted or recognized a cause of action by an infant or the infant’s father against the infant’s mother for prenatal injuries.” The trial court ruling stated: “Granted; the Court is of the opinion that all new causes of action should be established, if at all, by either the legislature or the Supreme Court.”
I agree with Chief Justice Brock and Justice Batchelder that the legal relationship between a mother and her fetus is irrefutably unique and that we should approach this particularly sensitive legal issue with utmost care and caution. The right of a child to bring suit against his or her mother for injuries caused to the child before birth is fraught with difficult issues which should be resolved by a careful, case-by-case development of the law.
However, I believe that the negligent, acts of the mother alleged in this case are actionable because a breach of the duty of care owed to her fetus could foreseeably cause serious harm to the unborn child. I, therefore, concur with Justices Thayer and Horton that a cause of action has been stated.