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Growing recognition of wrongful death for unborn children.

Writing in the August issue of the newsletter of the Advocacy, Practice and Procedure, James M. Simpson Jr. of Eldredge & Clark, Little Rock, discusses the increasing numbers of courts and legislatures recognizing actions for wrongful death of unborn children:

The question whether a wrongful death action lies for the negligently inflicted death of an unborn child has been answered increasingly in the affirmative. A clear majority of United States jurisdictions are moving away from the old rule set forth in an 1884 case in which Oliver Wendell Holmes, when sitting as a justice of the Supreme Judicial Court of Massachusetts, held that such an action could not lie. The old rule is being abandoned primarily on the basis of whether the unborn child was viable at the time of its death. However, before reaching the issue of viability, courts typically conclude that unborn children are "persons" within the meaning of their wrongful death statutes.

Weakening the strength of the old rule are advances in medicine that have fundamentally changed the way the modern mind conceptualizes the "separateness" between mother and child, and the ever-increasing amount of authority dismissing previous rationales for denying an action. The clear trend is to recognize wrongful death actions for the deaths of unborn children, but the issue of appropriate damages is not so clear.

Becoming an anachronism

For approximately five decades, courts and legislatures across have considered whether the personal representative of an unborn child can maintain a wrongful death action. Holmes's decision came in Dietrich v. Inhabitants of Northampton, 52 Am.Rep. 242, 138 Mass. 14 (1884). It is quickly becoming a legal anachronism. While many jurisdictions predicate a wrongful death action of an unborn child primarily on the issue of viability (in medical parlance), the clear majority position is that a wrongful death action can lie for the death of an unborn child.

Arkansas was a holdout state until this year's decision in Aka v. Jefferson Hospital Association Inc., 42 S.W.3d 508, 518 (2001), when it joined the majority of jurisdictions on this point. The case is illustrative of how a majority of jurisdictions have addressed the issue.

In Aka, the Supreme Court of Arkansas was squarely faced with the question of whether a viable fetus is "a person within the meaning of Arkansas' wrongful-death statute." The court was asked to overturn a 1995 four-three ruling in Chatelain v. Kelley, 910 S.W.2d 215, 219 (Ark. 1995), which held that a viable fetus was not a "person" within the meaning of the statute.

Reconsidering Chatelain, the court noted it was based on the Arkansas legislature's old characterization of the word "person," which was legislatively changed in the context of criminal law after Chatelain to include unborn children. The Aka court noted that the underpinnings of Chatelain were undermined seriously by the legislative change, stating that the "relevance of the legislature's response, by statutorily defining person in the criminal context to include a fetus, cannot be understated." The Aka court's reliance on how a person is defined in other contexts is an approach that has been used by other courts. See, e.g., Farley v. Sartin, 466 S.E.2d 522 (W.Va. 1995) (citing cases from other jurisdictions turning on legislative enactments in other areas of law other than tort in deciding the scope of the word person).

Legislation changes definition

Some states have amended their wrongful death statutes to include unborn children. See, e.g., Farley v. Mount Marty Hospital Association Inc., 387 N.W.2d 42 (S.D. 1986) (South Dakota statute specifically including an unborn child). In fact, Arkansas did this in 2001 when it enacted legislation to include a viable fetus in its definition of "person" within Arkansas' wrongful death statute.

The following United States jurisdictions either explicitly or implicitly recognize a wrongful death action for the death of an unborn child by statute, state case law, or federal case law: Alabama, Arkansas, Arizona, Colorado, Connecticut, District of Columbia, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, North Carolina, North Dakota, Nevada, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, Wisconsin, and West Virginia.

Issue of viability

Whether a wrongful death action lies for the death of an unborn child hinges in large part on the gestational development of the fetus. The term "viable" typically refers to a point in the gestational development of a fetus at which point it would be "capable of independent existence if removed from its mother's womb." See Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411, 453 n.79 (1978, supp. 2001), which states that "it has often been noted that a fetus ordinarily is not viable until the sixth or seventh month of its mother's pregnancy."

However, some jurisdictions do not appear to require such an advanced gestational age. For instance, a Georgia court has applied a "quickening" test so that if a child was able to move in the mother's womb at the time of death, then a wrongful death action could lie. See Porter v. Lassiter, 87 S.E.2d 100 (Ga.App. 1955). Viability is not a prerequisite for maintaining a wrongful death action in all jurisdictions that hold that such an action can lie, but it is a popular and useful dividing line.

Because, to quote A.L.R.3d, "it has often been noted that a fetus ordinarily is not viable until the sixth or seventh month of its mother's pregnancy," one may hazard to state that the issue of viability has not yet been over-complicated by the existence of post-natal medical technologies. But the development and decline of human beings is so inextricably tied to one's age, it seems likely that advances in medical technology will complicate issues of viability in the near future. Methods and machines are certain to develop that can sustain a child's life outside its mother very early in its gestational development.

Key considerations

Judicial forums have consistently based their recognition of the wrongful death action on a number of key considerations. For example, many courts have premised the cause of action on the rationales that (1) a viable unborn child is a "person" or "minor child" under their state's wrongful death statute (sometimes referencing other statutes in reaching the decision); (2) because the child could have maintained an action for prenatal injuries had he or she lived, an injustice would result if birth was used as a demarcation; (3) medical technology has advanced considerably so that learned men and women cannot fairly subscribe to the belief that the child and mother are one, or a "single entity"; and (4) in theory, a tortfeasor could face less civil liability if more harm was inflicted on a pregnant woman.

States that allow the action diverge on the issue of damages. Wrongful death statutes are not uniform in the damages they authorize. Courts differ in their interpretations of what damages are appropriate. Nevertheless, some damages for wrongful deaths of unborn children have included: (1) loss of companionship and affection the child could have provided the relative; (2) pecuniary loss to parents based on the earning power of the child and likely contribution to parents; and (3) sorrow, mental distress, and bereavement of relatives.

Of course, problems with indeterminancy and speculation arise with respect to valuing an unborn child's potential emotional and pecuniary contributions to parents and other relatives. Despite the pitfalls, courts have awarded some damages for the wrongful deaths of unborn children. Practitioners should be especially careful to consult their respective jurisdictions on the issue of damages for the wrongful death of an unborn child.

Some state haven't changed

Notwithstanding the clear majority trend, some states have decided to maintain the position that a wrongful death action cannot lie for the negligent death of an unborn child. It should be kept in mind that some minority courts have not been squarely faced with the question when a viable fetus was at issue, so their minority status is therefore tentative. Nevertheless, minority jurisdictions have usually chosen not to construe "person" or "minor child" in their wrongful death statutes to include an unborn child. Instead, they declare that it is the province of the legislature to expand the remedial scope of their statutes on this point.

The states holding to the rule that a wrongful death action will not lie for the negligently inflicted death of an unborn child are Alaska, California, Florida, Iowa, Maine, Nebraska, New Jersey, New York, Tennessee, Texas, and Virginia. The U.S. jurisdictions of Wyoming, Puerto Rico, and Guam appear to have no case law on this issue.

A settled issue

The issue of wrongful death actions for the deaths of unborn children is becoming settled, although questions of appropriate damages may linger. While some states have declined to recognize the cause of action, it is likely that those states will soon follow the majority trend and recognize wrongful death actions for children en ventre sa mere. The previous rationales for denying such a cause of action have been increasingly repelled and replaced with more modern notions of justice and social policy.
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Publication:Defense Counsel Journal
Geographic Code:1USA
Date:Oct 1, 2001
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