Whether or not a parent may maintain a cause of action against a negligent healthcare provider for the death of a fetus generally depends on the laws of the jurisdiction in which the medical care was given. The issue is determined on the basis of the definition of the word “person” in the state’s wrongful death statute. There is usually some line of demarcation in the statute – a critical stage of development after which an action may be pursued by parents for the death of that fetus. In most jurisdictions, a parent is entitled to maintain an action to recover for the wrongful death of a fetus after the fetus is developed enough to live apart from its mother. Only a few courts have upheld such an action regardless of the viability of the fetus.
The jurisdictions that permit recovery for the wrongful death of a fetus give various reasons for their position, including the following:
- The fact that the death of a child occurs due to the negligence of a healthcare provider shortly before or after birth should not be determinative of liability.
- A viable unborn child is in fact an existing person and a living human being because it can survive outside of its mother’s body.
- If there was no recovery for the death of a fetus due to the healthcare provider’s negligence, then there would be a wrong without a remedy. The fact that a physician would be liable for the wrongful death of a child immediately after its birth but not immediately prior to its birth is an absurd result.
A minority of states deny recovery for a stillborn infant under the provisions of their wrongful death statutes, and the courts of these states justify this position as follows:
- Lack of legal precedent.
- An unborn child is a part of its mother until birth and has no independent legal existence.
- Permitting recovery for the wrongful death of a fetus would open the door to fraudulent claims.
It is the job of the legislature, not the courts, to specifically create this cause of action.