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...