In the majority of cases, if an unborn child dies as a result of the intentional or negligent actions or inaction of another party, then the parents of the unborn child may bring an unlawful death action for their unborn child.
As far as how parents may bring an unlawful death lawsuit on behalf of their unborn child, the exact procedures will depend on the laws of the state in which the wrongful death claim occurred. For example, the state of New York does not allow for a cause of action for the wrongful death of an unborn child.
In general, a wrongful death lawsuit for an unborn child may arise in the following cases:
- When a child is born alive, but dies subsequently after delivery due to medical malpractice,
- When an unborn child dies as a result of defective products; or
- When an unborn child dies due to the negligence of a party while in the mother’s stomach or uterus.
The wrongful death of an unborn child is generally classified as a prenatal tort. Currently, there are 40 states that recognize some form a wrongful death claim for an unborn child or fetus, as long as the unborn child or fetus was “viable” at the time their death occurred. In addition, there are 3 states that recognize a wrongful death claim if the unborn child was first born alive.
The remaining 7 states do not recognize a fetus or unborn child as a person, regardless of their viability. This means that in those 7 states, parents may not bring a claim involving an unborn child or fetus that is killed anytime, unless the child is first born alive.
Why Would One Be Liable for Wrongful Death When a Child Is Unborn?
Once again, there is a split in the states as to why an individual should be held civilly or criminally liable for the death of an unborn child or fetus. Many claim that since the child is unborn, the child is not an existing person and a wrongful death claim should not be allowed to be brought.
However, many states recognize an unborn child as a person from the moment of conception or viability, as a result of state and federal decisions regarding fetus viability. These court decisions now allow most parents to bring a wrongful death claim against the wrongdoer because:
- A defendant’s wrongful conduct should not be ignored and go unredressed only because the child has not yet been born;
- The death of a fetus or an unborn child should be treated no less than a death of a baby who has lived a short life as the parents were expecting the child; and/or
- The word “unborn child” should be recognized as a person by definition of the fetus being a child.
When Is an Unborn Child or Fetus Considered “Viable”?
As mentioned above, the majority of states recognize a cause of action for the death of an unborn child or fetus, only if the unborn child or fetus is considered viable. There are three primary standards utilized by states when recognizing wrongful death claims involving unborn children and their viability:
- Conception Standard: The conception standard is applied in 15 states, and allows recognition of a wrongful death claim for an unborn child or fetus from the moment of conception until birth.
- In other words, the conception standard recognizes the rights of an unborn child from the very moment of conception and offers a legal avenue for parents to initiate a wrongful death claim of their unborn child;
- Born-Alive Standard: This is the standard referenced above where 3 states only recognize the availability of a wrongful death claim of an unborn child or fetus, if they are born first; or
- Viability Standard: The viability standard is the most widely accepted standard for determining whether a wrongful death lawsuit can be filed for an unborn child or fetus. Under the viability standard, a fetus is only considered viable when it reaches the fetal development point where it could potentially survive outside the womb with medical assistance.
- In general, the fetal development point is generally around the 23rd week of gestation.
- Then, if a fetus or unborn child is lost after reaching the point of viability due to negligence or wrongful acts, the parents of the unborn child may be able to file a wrongful death lawsuit.
- The viability standard is used by 25 states.
Once again, there are 7 states that offer no protections for parents that lost their unborn child or fetus. However, the mother of the child still may have personal injury damages that she can claim regarding the loss of the child, such as past and future medical bills, loss of wages, emotional distress damages, or other injuries related to the loss of the child.
Can a Crime Be Committed against an Unborn Child?
In short, yes, many states allow for prosecutors to bring a separate criminal offense for the killing or injuring of an unborn child or fetus during the commission of another crime against a pregnant woman.
In fact, the federal government has created a law known as the Unborn Victims of Violence Act. The Act is a federal law that recognizes an embryo or fetus in utero as a legal victim, if the fetus is killed during the commission of any federal crimes of violence. The Act also provides a definition for “child in utero” as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.”
Additionally, many states have laws that recognize the unlawful killing of an unborn child as homicide in some circumstances. For example, in the state of Georgia, a person commits the offense of battery of an unborn child when they intentionally inflict physical harm upon an unborn child, such as by striking a pregnant woman.
Can a Claim Be Brought after the Child Is Born with Injuries?
In short, yes, an injury claim can be brought in many states after a child is born with injuries. Therefore, if the unborn child or fetus sustains any type of injuries related to medical malpractice, defective products, or the negligence of a party, and then the child is born alive, the parents may bring a personal injury claim against the party that is responsible for the child’s injuries.
In the case of a child being injured while in the womb, and then being born alive and subsequently dying after delivery, the parents are able to bring a wrongful death claim in almost all states.
Importantly, California, Florida, Hawaii, Indiana, Iowa, Maine, New Jersey, New York, and the Virgin Islands all require the child be born alive before its death in order to bring a wrongful death suit on the child’s behalf.
How Can a Lawyer Help?
If you have lost an unborn child as the result of the negligent or intentional actions of another party, and you wish to hold that party accountable for their actions, then it is in your best interests to consult with an experienced wrongful death lawyer. An experienced wrongful death lawyer will be able to help you understand the laws in your state regarding wrongful death claims involving an unborn child.
Additionally, an experienced personal injury lawyer in your state can also help you understand what your legal rights and options are according to the laws of your state. An attorney can help you identify the party responsible for the wrongful death of your child, and help you initiate a personal injury lawsuit against them. Additionally, an attorney will also be able to represent you in court, as needed.
Finally, if you have been accused of a crime regarding harming an unborn child, you should immediately consult with a criminal defense attorney. A criminal defense lawyer can advise you of your rights, legal defenses, and represent you at any in person criminal proceedings.
