Notions of reproductive harm in Canadian law: Addressing exposures to household chemicals as reproductive torts

Mounting scientific evidence is suggesting that various synthetic chemicals are ubiquitous in the household and natural environment, and are affecting reproductive health in humans. Yet litigation in response to exposure to harmful chemicals has had limited success. This is in large part because causation is often difficult to prove, as exposure often occurs over long periods of time, and the sources of suspected chemical agents are ubiquitous and/or diffuse. In light of these challenges, there is a need to consider new legal strategies to confront these harms. This article examines the potential for prenatal exposure to harmful chemicals to be approached as reproductive torts as opposed to toxic torts. Focusing on two groups of household chemicals – brominated flame retardants and phthalates – this article identifies the ways in which prenatal injury claims and birth torts (i.e. wrongful pregnancy, wrongful birth, and wrongful life cases) can inform future litigation regarding prenatal exposures to risky household chemicals. In particular, reproductive tort jurisprudence offers a variety of ways of conceptualizing causation, injury and fault in cases where individuals are exposed to synthetic household chemicals before birth.