December 18, 2012
Under English common law, a right of action for personal injury abated upon the injured person's death, and the decedent's dependents were left without a legal remedy. In 1846, the English Parliament enacted the Fatal Accidents Act, better known as Lord Campbell's Act, creating a cause of action for wrongful death. Before long, all of the state legislatures in the United States had passed similar wrongful death statutes.
However, beginning as early as 1884, American courts interpreted these statutes to exclude recovery for the death of unborn children. See Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). This trend began to change in 1946, as courts started to allow recovery for the wrongful death of infants who had been injured before birth but died after being born alive. Cf. Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946) (recognizing cause of action for prenatal injury incurred after fetus became viable). As of late 2011, at least 36 states generally recognized, whether by statute or case law, a cause of action for the death of an unborn child. Carranza v. United States, 2011 UT 80, & 14 n.9, 267 P.3d 912.
However, not all of these states have specifically addressed the issue of whether a cause of action exists for the death of an unborn child where the death occurs prior to the child's viability. Courts that have decided this issue have reached different conclusions. For example, courts in New York, North Carolina, and South Carolina have refused to allow recovery for the wrongful death of nonviable fetuses or have suggested that there can be no such recovery. Johnson v. Ruark Obstetrics & Gynecology Assocs., 365 S.E.2d 909, 912 (N.C. Ct. App. 1988) (dictum), aff'd, 395 S.E.2d 851 (N.C. 1990); Crosby v. Glasscock Trucking Co., 532 S.E.2d 856 (S.C. 2000); Bacani v. Rosenberg, 861 N.Y.S.2d 24 (App. Div. 2008). Conversely, courts in Alabama, Illinois, Missouri, Oklahoma, South Dakota, and Utah have recognized causes of action for the wrongful death of nonviable fetuses. Mack v. Carmack, 79 So. 3d 597 (Ala. 2011); Smith v. Mercy Hosp. & Med. Ctr., 560 N.E.2d 1164 (Ill. App. Ct. 1990); Connor v. Monkem Co., 898 S.W.2d 89, 92 (Mo. 1995); Pino v. United States, 2008 OK 26, 183 P.3d 1001; Wiersma v. Maple Leaf Farms, 1996 SD 16, 543 N.W.2d 787; Carranza, 2011 UT 80, & 14 n.9, 267 P.3d 912. See generally Sheldon R. Shapiro, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411.
Of course, since wrongful death causes of action arise by statute, the issue is typically resolved by interpreting statutory language. The Restatement (Second) of Torts reflects this reality:
Harm To Unborn Child
(1) One who tortiously causes harm to an unborn child is subject to liability to the child for the harm if the child is born alive.
(2) If the child is not born alive, there is no liability unless the applicable wrongful death statute so provides.
Restatement § 869.
The more recent cases suggest that the trend is toward allowing recovery for the wrongful death of nonviable fetuses. For example, in the Carranza case, the Utah Supreme Court interpreted the term "minor child" to include any fetus from the moment of conception, reasoning that the term "minor" sets an upper age limit on the term "child" but not a lower limit. In the Pino case, the Oklahoma Supreme Court construed a statute that allowed recovery for the death of "one" and determined that the term "one" included a nonviable fetus. 2008 OK 26, & 20, 183 P.3d 1001.
In the Mack case, the Alabama Supreme Court focused on public policy and an Alabama criminal statute in deciding that recovery should be allowed for the wrongful death of a nonviable fetus. The court explained:
Given the purpose of the Wrongful Death Act of preventing homicide, we agree with the Huskey Court that it would be "incongruous" if "a defendant could be responsible criminally for the homicide of a fetal child but would have no similar responsibility civilly." Huskey, 289 Ala. at 55, 265 So.2d at 597-98. Moreover, the viability rule, much like the born‑alive rule, actually benefits the tortfeasor who inflicts a more severe injury. Under the viability rule, a tortfeasor who inflicts an injury that causes the immediate death of a nonviable fetus escapes punishment, while a tortfeasor who inflicts an injury that does not result in death, or that results in death only after the fetus attains viability, may be liable for damages. As the Eich Court reasoned, "[i]t would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant," especially given the focus in the Wrongful Death Act on punishing the wrongdoer by allowing punitive damages. Eich, 293 Ala. at 97, 300 So.2d at 355.
In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover, it is an endeavor that unfairly distracts from the well established fundamental concerns of this State's wrongful‑death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that "logic, fairness, and justice" compel the drawing of such a line; instead, "logic, fairness, and justice" compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.
79 So. 3d at 611.
In Virginia, the trend toward more liberal wrongful death recovery has taken the form of legislative action. At its 2012 legislative session, the General Assembly amended the Wrongful Death Act, Va. Code Ann. § 8.01-50, to allow recovery for "fetal death," as defined in Code § 32.1-249(2). Under the statutory definition, "fetal death" is defined to occur "regardless of the duration of pregnancy." Va. Code Ann. § 32.1-249(2). The amendment to Virginia's wrongful death statute abrogates the holding in Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969), wherein the court held that there is no cause of action for the death of an unborn viable child, because such a child was not a "person" under the wrongful death statute.
In the absence of specific legislative action, it is likely that courts will continue to grapple with the issue of recovery for the wrongful death of nonviable fetuses. Cf. Jenkins ex rel. Hajeh v. Hearn Vascular Surgery, P.A., 719 S.E.2d 151 (N.C. Ct. App. 2011) (remanding personal injury case to determine whether personal injury claim exists for child who was injured prior to viability but born alive). If the present trend continues, it is likely that more states will allow such recovery in the future.