The law varies from state to state whether you can bring an unlawful death action for their unborn child.
The issue of whether a claim can be brought arises in two different situations:
- The unborn child or fetus dies because the mother is killed during the birth
- The mother survives and unharmed, but the unborn child is injured which leads to death either at the time of delivery or while in the mothers utero prior to delivery
The main issue of whether a wrongful death can be brought depends on which state the claim is being brought. Currently, 40 states recognize a wrongful death claim for an unborn child or fetus only if the fetus was "viable" at the time of death. The other 10 states do not recognize the fetus or unborn child as a "person" regardless of viability. This means that it does not matter how old the unborn child is: if the fetus is killed at anytime the parents cannot bring a wrongful death claim.
Why Would One Be Liable for Wrongful Death When Child Is Unborn?
Many claim that since the child is unborn, the child is not an existing person and a wrongful death claim cannot be brought. Wrongful death claims were not recognized until the past few decades where the court decided that unborn child still should be recognized as a person if they are viable. The decisions to allow parents to bring a wrongful death claim against the wrongdoer rests on couple of reasons:
- The defendant’s wrongful conduct should not be ignored and go unredressed only because the child has not been born and still a fetus
- the death of a fetus or death of an unborn child should be no less than a death of a baby who has lived a short life and the parents were expecting the child
- The word "unborn child" should be recognized a person when the fetus is viable.
When Is a Unborn Child or Fetus considered “Viable”?
The unborn child becomes legally recognized when the fetus has become "viable". at the time of the death. Generally a fetus is considered "viable", when it has reached a stage of development where it could live outside of the womb without the aid of life support technology. Many states recognize a fetus as "viable" in the third trimester or after 24 weeks in the pregnancy.
Many states do not recognize viability and a wrongful death claim cannot be brought no matter how old the unborn child or fetus is. However, a claim may be brought if the child is born alive, but dies subsequently right after delivery.
Can a Crime be Committed against an Unborn Child?
Many states allow a separate offense to be brought for the killing or injuring of an unborn child during the commission of an already defined crime against a pregnant woman. The federal government has also created a law known as the Unborn Victims of Violence Act. This law provides that any person who causes death or injury to an unborn child shall be charged with a separate offense, in addition to any charges relating to the mother.
Can a Claim Be Brought after the Child is Born with Injuries?
If the unborn child or fetus sustain any type of injuries because of medical malpractice, defective products, negligence of a party while in the mothers stomach or utero, then the child is born alive, but dies subsequently after delivery- regardless of the amount of time that the child was living outside of his or her mother, the parents may be able to bring a wrongful death claim. Many states recognize the child as an "existing person" at this stage and a claim can be brought by the parents on behalf of the child’s interest.
How Can a Lawyer Help?
If you have lost an unborn child, a wrongful death attorney may be able to help you recover expenses and damages for your pain and suffering. A personal injury lawyer can also advise you on your state’s laws regarding the wrongful death of unborn children.
If you have been accused of a crime you should speak to a criminal defense attorney immediately. A criminal defense lawyer can advise you of your rights, legal defenses, and the complicated legal system.