IN a pioneering but controversial move, California is considering granting formal protection to the unborn in the workplace. A bill moving through the Legislature would allow lawsuits to be brought against an employer over injury to a fetus whose mother is on the job.
Such lawsuits have been brought in the past in some states under conventional civil statutes. In most states, though, the liability of employers in prenatal injury cases remains untested. California would become the first state to decree explicitly that legal action could be taken.
The legislation raises broad questions of how far corporate responsibility should extend and how much protection society should grant the unborn.
It is supported by worker groups but is vehemently opposed by business, which worries it will unleash a wave of lawsuits against corporate America.
``The number of claims that would come from this would be enormous,'' says Willie Washington, a lobbyist for the California Manufacturers Association (CMA).
The legislation, passed by the state Assembly last week, is an outgrowth of a 1989 court decision involving a pregnant woman who suffered complications while at work. Linda Marie Bell, a clerical worker at Macy's department store in San Francisco, complained of pains one day in her seventh month of pregnancy.
A nurse at Macy's thought the problem was gas pain and delayed calling medical help. Ms. Bell's problem turned out to be more serious. The child was subsequently delivered disabled and died at age two.
In the suit that followed, a state Court of Appeal ruled that a baby injured in the workplace while a fetus cannot sue his mother's employer for damages.
The court decided the case fell under worker-compensation laws because the injuries to the fetus were a consequence of an injury to Bell as an employee. Worker-compensation laws bar civil suits. Since the child was not a company employee, he couldn't collect workers' compensation.
The judges were uneasy with the decision, however, and suggested the Legislature review the law to fill the gaps.
The bill by Assemblyman Richard Floyd (D) would allow action well beyond the Bell case: Suits could be filed against negligent employers on behalf of children with prenatal injuries stemming from machinery accidents, chemical exposure, and other workplace hazards.
Most states allow recovery of damages for harm to the unborn under civil codes. Suits have been filed, for instance, on behalf of a child who suffered prenatal injuries in a car accident.
More recently, ``fetal protection'' has expanded into new areas. Some drug abusers, for example, have been prosecuted for endangering their unborn.
The parameters of fetal rights in the workplace are just beginning to be defined. While lawsuits have been filed, it is difficult to prove prenatal injury resulted from conditions at work, and in many states employer liability has yet to be challenged.
The California measure would not dramatically expand the concept of fetal rights, but allowing such suits would be a boost for advocates of greater protections.
``There is symbolic significance in that you are taking a slowly evolving element of common law and codifying it,'' says Carin Clauss, a law professor at the University of Wisconsin. ``That would be a victory for fetal rights.''
The possibility of more legal challenges is what worries the CMA, the California Chamber of Commerce, and the County Supervisors Association of California. If the law is adopted, these groups envison a suit every time a child is born with a defect whose mother happened to work.
Compounding businesses' concern is a US Supreme Court ruling in March that knocked down controversial policies some corporations have adopted to protect fetuses. In the case of Johnson Controls, a Wisconsin battery maker, the court ruled it was discriminatory to bar fertile females from high-risk jobs because of potential harm to the unborn.
Supporters of the California legislation, including unions and trial lawyers, argue the measure would have a salutary effect.
``This would provide another disincentive for employers not to maintain safe working conditions,'' says Leonard Feldman of the California Teachers Association. A similar measure failed last year. Sponsors of the latest bill say they have the support they need this time.