Wrongful Death of the Fetus: Viability Is Not a Viable Distinction

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 1FALL 1984

Wrongful Death of the Fetus: Viability Is Not a Viable Distinction

I. Introduction

The legal status of the unborn child and the rights of its parents are unsettled areas of tort law.(fn1) Historically, courts did not allow recovery when an unborn child was injured or killed.(fn2) Over the past century, courts and legislatures in the United States have expanded the scope of recovery for prenatal injury and death.(fn3) Today, most jurisdictions recognize causes of action for the injury of a fetus and for the wrongful death of a viable fetus.(fn4) However, most jurisdictions do not recognize a cause of action for the wrongful death of a nonviable fetus.(fn5) This Comment argues that viability is irrelevant in deciding whether to allow a cause of action to the parents of a fetus that has been wrongfully killed. Rather than barring all causes of action for the death of a nonviable fetus, courts should ignore the arbitrary line of viability and decide each case on its merits.

Viability is not an issue in actions for prenatal injury to children who are subsequently born alive,(fn6) and it is logically inconsistent that viability should be an issue when the prenatal injury results in the death of a fetus.(fn7) This is especially true in Washington, where the legislature has enacted a statute that allows recovery to parents for grief and mental suffering because of the injury or death of a minor child,(fn8) and where the state supreme court has held that a viable fetus falls within the terms of the statute.(fn9) The parents of a four-month-old fetus who is wrongfully killed may suffer as much as the parents of a six- or seven-month-old fetus.

This Comment reviews the history of tort law treatment of the fetus who is wrongfully injured or killed.(fn10) The Comment discusses case history and wrongful death statutes, with a focus on Washington law.(fn11) Finally, the Comment concludes that ^courts should ignore viability when deciding cases of fetal wrongful death.

II. Wrongful Death

The right of recovery for the wrongful death of a person is a statutory right.(fn12) Consequently, recovery for the wrongful death of a fetus depends upon the state's wrongful death statute and the court's interpretation of that statute.(fn13)

Historically, if the defendant's tort resulted in the death of the victim, the tort was said to die with the victim.(fn14) The result of the rule was that in the most severe tort cases the defendant was absolved of liability.(fn15)

In 1846 the English Parliament passed the first wrongful death statute, Lord Campbell's Act, to remedy this situation.(fn16) In the United States, state legislatures followed the British example, and today every state has some form of wrongful death statute.(fn17)

Most state wrongful death statutes are modeled after Lord Campbell's Act and create a new cause of action for the death of the victim.(fn18) The action can be brought by the victim's personal representative for the benefit of statutorily designated beneficiaries.(fn19)

III. History of Tort Law and the Unborn Child

The common law did not allow broad tort recovery by or for the unborn child. Justice Holmes applied the common law rule in 1884 in Dietrich v. Inhabitants of Northampton,(fn20) when he stated that an unborn child is a part of its mother and that any injury to the child that was not too remote was recoverable by the mother on her own behalf.(fn21) Because an unborn child was not separate from its mother, the parents could not recover for prenatal injuries to, or death of, the fetus. United States courts followed the common law rule(fn22) until 1946.(fn23)

A. History of Recovery for Prenatal Injury

In 1946 the Federal District Court for the District of Columbia deviated from the common law rule in Bonbrest v. Kotz.(fn24) In Bonbrest, an infant sued through its father for injuries sustained during delivery. The court denied the defendant's motion for summary judgment and distinguished the case from Dietrich on the ground that the infant in Bonbrest had survived to prove that it could live apart from its mother.(fn25) Since the case involved a viable fetus, and since the fetus had demonstrated its capacity to survive, the Bonbrest court reasoned that it could not deny the child standing in court.(fn26) The Bonbrest court rejected the common law rule, noting that the common law is an ever-changing phenomenon.(fn27)

United States courts quickly incorporated the Bonbrest holding into the common law. According to Dean Prosser, Bonbrest and the cases that followed it "brought about what was up till that time the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts."(fn28) All states now allow recovery for prenatal injuries if the child is subsequently born alive.(fn29)

When an injured fetus is subsequently born alive, viability at the time of injury is not a determinative factor.(fn30) Courts have either ignored the viability question when the injured fetus was subsequently born alive(fn31) or have expressly stated that the issue is irrelevant.(fn32)

B. History of Recovery for Wrongful Death

After permitting recovery for an injured fetus that is subsequently born alive, courts began to recognize a cause of action for the wrongful death of a child who died because of prenatal injuries. Courts first recognized a cause of action when the child was born alive and then died.(fn33)

Courts justified the action on two bases. First, most wrongful death statutes provide a right of action for the death of a person.(fn34) The child who is born alive has always been considered a "person."(fn35) Second, most wrongful death statutes limit the action to cases in which the decedent might have recovered damages from the tortfeasor if death had not occurred.(fn36) Because the child who lives can recover for prenatal injuries, it follows that the child's statutory representative can recover for wrongful death.

When a fetus sustains injuries and is stillborn, courts are divided as to whether to allow a wrongful death action.(fn37) Although some states do not allow the fetal wrongful death action,(fn38) the majority of states allow wrongful death actions for the death of a viable fetus.(fn39)

An overwhelming number of courts do not recognize a right of action for the wrongful death of a nonviable fetus.(fn40) Only Georgia and Rhode Island have deviated from the general rule and have allowed recovery for the wrongful death of a nonviable fetus.(fn41)

C. Wrongful Birth and Wrongful Life

The relatively new torts of "wrongful birth"(fn42) and "wrongful life"(fn43) are the most recent extensions of tort law as it applies to the unborn child. Under a wrongful birth action, the parent sues for the birth of a child who would not have been born but for the negligence of a third person.(fn44) Wrongful life is an analogous tort action by the child, who claims that he or she would not have been born, and presumably would not have had to suffer, but for the negligence of a third person.(fn45) In discussing viability, this Comment will draw analogies between these torts and wrongful death actions for unborn children, but a thorough analysis of wrongful birth and wrongful life actions is beyond the scope of this Comment.

IV. Recovery for Prenatal Injury and Fetal Wrongful Death

Arguments for and against allowing a cause of action for prenatal injuries or death of the unborn child were asserted in the earliest cases on the subject.(fn46) Modern courts and scholars advance essentially the same arguments.(fn47)

The major arguments against recovery for prenatal injuries include: (1) lack of precedent;(fn48) (2) inseparability of the fetus from the mother;(fn49) (3) difficulty of proof of causation;(fn50) (4) danger of double recovery by the mother;(fn51) (5) potential of fraudulent claims;(fn52) and (6) legislative prerogative.(fn53)

Courts have refuted each of the above arguments in arriving at the now unanimously accepted rule that an action exists for prenatal injuries to a child who is born alive.(fn54) The argument of lack of precedent has not been valid since 1946, when Bonbrest was decided. Lack of precedent was not a strong argument even then, for as the Bonbrest court stated, "[t]he absence of precedent should afford no refuge to those who by their wrongful act, if such be proved, have invaded the right of an individual."(fn55) Courts used similar reasoning to refute the arguments that causation would be too difficult to prove, and that fraudulent claims might arise.(fn56) Problems of proof and possibilities of fraud exist in many areas of law, but should not preclude action by an injured plaintiff. Furthermore, courts have long recognized the ability of the judiciary to make law.(fn57)

As early as Bonbrest, courts refuted the contention that a fetus is merely part of its mother.(fn58) These courts pointed out that the unborn child is recognized as a separate entity in medicine(fn59) and in other areas of law.(fn60) Furthermore, under the view that the fetus is a separate entity, double recovery does not occur. The mother recovers for her own personal injuries, and the child, or its parent on its behalf, recovers for injuries that the child incurred as a separate being.

Each jurisdiction addressed...