Can A Parent Sue For the Wrongful Death of an Unborn Child?

          A sad, and perplexing legal quandary long has existed when someone’s negligence causes the death of an unborn baby, i.e. a fetus.  Whether the fetus dies in a car accident, through medical malpractice, or some other negligence, the issue of whether the family can file a wrongful-death suit has been hotly debated.  The issue is a particularly sensitive one because it deals with the controversial question of “when life begins.”  Since wrongful-death claims only apply to “persons,” the question is whether a fetus is a person.

            With the April 2012 passing of a new law in Virginia, Va. Code § 8.01-50B, all three local jurisdictions (including Maryland and the District of Columbia) now recognize some form of action, although they take different approaches to when it arises.

            Until 2012, Virginia – long, the most conservative of the three jurisdictions -- did not recognize wrongful-death claims for fetuses.  This was at odds with Virginia’s strong pro-life component, which defines a “person” as existing at conception.  How could Virginia argue, on the one hand, that a fetus was a “person” when it came to women’s health care, but argue, on the other hand, that a fetus was not a person when it came to civil lawsuits?  Although no real legitimate argument could be made to explain this discrepancy, Virginia’s General Assembly recently decided to resolve the conundrum.

            A bill recently signed into law by Governor McDonnell creates a cause of action for the wrongful death of a fetus.  The action must be brought by the natural mother (or an administrator if the mother cannot) and allows the family to recover damages.  Importantly, the law appears to allow a fetal wrongful-death claim regardless of the age of the fetus.  In other words, it appears that a wrongful-death claim would exist for a 2-week old fetus despite the fact that the fetus was not yet viable outside of the womb.

            The viability question is an important one because Maryland and the District of Columbia have both reached a different result on when the claim exists.  While both jurisdictions allow fetal wrongful-death claims, the claim can only arises if the fetus was viable outside of the womb when the death occurred.  See Greater Southeast Community Hospital, 482 A.2d 394 (D.C. 1984); Kandel v. White, 663 A.2d 1264 (Md. 1995).  If the fetus was not viable, then no wrongful-death claim arises.

Thus, in Maryland and D.C., the wrongful-death claim only arises late in the pregnancy.  While under the new Virginia law, it appears that a fetal wrongful-death claim exists from conception.