Recovery for the Death of a Stillborn Child

More than a half-century ago, Janice Endresz, then seven months pregnant, was injured in a motor vehicle accident and within days delivered stillborn twins, a male and a female. Her husband, as administrator of the estate, brought suit and sought damages for the wrongful death of each child. On appellate review of the trial court's dismissal of the claims for wrongful death of the stillborn children, Chief Judge Fuld of the New York Court of Appeals refused to depart from established precedent, holding that a wrongful death action could not be maintained for the death of an unborn child. Endresz v. Friedberg, 24 NY.2nd 478 (NY 1969). This remains the law of New York. Bacani v. Rosenberg, 52 AD 3rd 417 (1st Dept. 2008).

The Historical Perspective

In the near half-century since the Endresz decision, however, developments in medicine and science have persuaded the legislatures and appellate courts of a majority of states that the rule should be otherwise.

The analysis begins with the roots of our jurisprudence in English common law, where the right of action for personal injury abated upon the injured person's death and the decedent's dependents were left without legal remedy. In response, England's Parliament passed the Fatal Accident Act of 1846, better known as Lord Campbell's Act, which created a cause of action for wrongful death. The legislatures of American state governments soon followed suit, enacting wrongful death and survival statutes. See generally, Malone, The Genesis of Wrongful Death, 17 Stan. Law Rev. 1043 (1965). As an exception, however, state courts refused to recognize a wrongful death action for children whose demise was caused by prenatal injury. The exclusion was based on multiple grounds, including: 1) lack of precedent; 2) the potential for fraud; 3) the theory that the mother and child were one unit; and 4) that the issue was one for legislative rather than judicial determination.

The Pennsylvania Supreme Court's decision in Carroll v. Skloff, 415 Pa. 47 (Pa. 1964), is instructive. The plaintiff there, the father of an unborn child, brought suit against a defendant physician claiming damages on behalf of the child's estate, and as next of kin. He claimed that the physician had, in the course of an operation on the plaintiff's wife, negligently destroyed the infant in utero, a viable fetus of 10 weeks' gestation. The justice writing for the court framed the legal issue for the Pennsylvania Supreme Court as follows: “Is there a right of recovery under the Pennsylvania Wrongful Death Act and Survival Statutes by the administrator of an estate on behalf of an infant aborted, while en ventre sa mere, as the result of a direct trauma?”

In a prior decision, the Pennsylvania Supreme Court upheld a cause of action on behalf of an infant born alive for damages resulting from injuries that had been tortiously inflicted prior to the child's birth. Justice Eagan distinguished the issue in Carroll, stating that it was “patently and materially different. The statutes, on which the present complaint is based, do not provide recovery for injuries to a stillborn fetus.”

The rationale adopted by the Carroll court was consistent with many other opinions of the era. There, the court observed that the cause of action created by the Survival Statute was strictly derivative in nature, “grounded upon an existing personal cause of action which the deceased could have but did not institute during his or her life-time. It, therefore, necessarily follows that there must have been an independent life in being which could have instituted the action prior to death. Such, quite obviously, is not the case here.”

Turning to the Wrongful Death Act, the Pennsylvania Supreme Court determined that its state legislature could never have intended to provide for recovery by the estate of an unborn fetus. (The term “fetus” has been defined as “an unborn young from the end of the eighth week to the moment of birth as distinguished from the earlier embryo.” American Heritage Dictionary 499 (Second College Ed. 1982). A fetus has also been defined as “an unborn child. The unborn offspring of any viviparous animal; specifically the unborn offspring in the post-embryonic period after major structures have been outlined (in man from seven or eight weeks after fertilization until birth.)” Black's Law Dictionary 559 (5th Ed. 1979). Viability is defined as “capability of living ' That stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.” Id. at 1404.) Under Pennsylvania's Wrongful Death Act, the damages recovered in any such action were to be awarded to certain named heirs “in the proportion they would take his or her personal estate in case of intestacy.” Under then-established Pennsylvania law, a fetus still in its mother's womb could take property by devise or otherwise only if subsequently born alive. If the fetus is never born, it did not and could not have an estate from which others could take. Recognizing such Pennsylvania precedent from the 19th century, the court in Carroll wrote: “When the legislature provided that the damages recovered under the Act shall go according to the intestate laws, it manifestly intended to limit the created cause of action [i.e., the Wrongful Death Act] to those instances wherein the child's existence is recognized by the intestate laws.”

Explaining the rationale of the Pennsylvania Supreme Court's decision, the justice writing for the court touched upon a principle of tort law which in later years would guide courts facing similar issues down a much different path:

Further, there are sound and persuasive reasons for allowing recovery where the child is born alive suffering from injuries received during the gestation, which do not exist under the present circumstances. If the infant is born deformed or handicapped as a result of such injuries, justice requires that compensation be given. The responsibility of the parents is immeasurably extended and broadened, where the child may necessarily become a charge upon the community. Also, the fact that he or she is born alive tends to effectively permit a just result, and reduces materially the inherent complex problems instant to causation in the pecuniary loss suffered. Many material facts, capable of proof, may be placed before the jury to aid them in fixing the cause and proper remuneration. On the other hand, if the fetus is stillborn, speculation as to causation and particularly loss suffered is unreasonably increased. Damages given under such circumstances would not be for compensation purposes, but rather to punish the wrongdoer. This is not the type of recovery either the Wrongful Death Act or the Survival Statute intended to provide. Moreover, the parents, who would be the real beneficiaries, are not without a remedy and may be fully compensated for their loss in their own independent actions. Id., 415 Pa. at 49-50.

The Newer Thinking in Pennsylvania

More than two decades later, the Supreme Court of Pennsylvania would revisit the issue of whether a right of recovery existed under its Wrongful Death and Survival Statutes on behalf of a stillborn child who died as a result of injuries received en ventre sa mere. By the time it announced its decision in Amadio v. Levin, 509 Pa. 199 (Pa. 1985), 28 states and the District of Columbia had recognized, under their respective survival and wrongful death statutes, causes of action filed on behalf of the estates of stillborn children for fatal injuries they received while viable and still within their mothers' wombs. By 1985, Pennsylvania's jurisprudence had evolved to acknowledge that children, while still in utero, were individuals having existence as separate creatures from the moment of conception. Responding to one aspect of the Carroll court's decision two decades before, the Amadio court wrote:

As we have observed in the part, our wrongful death and survival statutes create a derivative cause of action, but those statutes are remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act, which is to provide a cause of action against one whose tortious conduct caused the death of another. By limiting the right to bring an action to those children born alive, we were giving the statute a narrow reading and thereby perpetuating the much criticized rule of the common law which made it “more profitable for the defendant to kill the plaintiff than to scratch him.” Prosser, Law of Torts Section 127 (4th Ed. 1971).

The Amadio majority was also confident that issues of proof and evidence could be resolved. The underlying premise that difficulty in obtaining proof of the wrong could bar the right to bring an action was rejected. The court was also confident that difficulties in proving damages in the case of a stillborn infant should not “be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who survived delivery for a few minutes, hours or days.” Recognizing that claims related to injuries by children born alive had been litigated for many years, the majority in Amadio expressed confidence “that the experience gained from handling such matters has matured our bench to the point when we can now extend the application of these cases to cases where the child is born dead due to death causing injury while en ventre sa mere.”

Some States Remain Reluctant to Recognize the Cause of Action

Historically, courts had expressed reluctance to recognize the cause of action for a stillborn child, in part based upon the notion that the parents would recover twice for their emotional distress. The Amadio court, and others, rejected this logic because it perpetuated the concept of a child inseparable from its mother as distinguished from its status as “an individual.”

The rationale and holdings of cases such as Amadio were not persuasive nationwide. Indiana, for example, continues to provide redress only for children born alive, who therefore fall within the scope of the state's Child Wrongful Death Statute. This legislation, which arguably creates an unprotected class of parents whose children are not born alive, has been upheld in the face of claims that it violates both state constitutional guarantees and the Equal Protection Clause of the Fourteenth Amendment. See, e.g., McVey v. Sergeant, 855 NE.2nd 324 (In. 2006).

Similarly, the wrongful death and survival statutes of the state of Texas prohibit the parents of a stillborn fetus from bringing claims for relief. The Texas appellate courts have, however, recognized exceptions to this general rule. In Brown v. Shwarts, 968 SW 2nd 331 (Tex 1998), the Texas Supreme Court held that a fetus later born alive was a “patient” within the meaning of Texas legislation such that the statute of limitations for its wrongful death began to run from the date of prenatal injuries. The court still required “live birth” to occur for the fetus to achieve its status as a “patient,” however.

In 2003, the Texas legislature granted the parents of a stillborn child a cause of action under the state's Wrongful Death Act, defining “individuals” within its scope to include “an unborn child at every stage of gestation from fertilization until birth.” However, the statute also created specific exceptions for claims arising out of medical malpractice or similar circumstances.

For Many Courts, the Type of Wrongful Conduct Matters

The issue of recovery for the wrongful death of a stillborn, nonviable fetus arose in a somewhat different context in Pino v. U.S., 507 F3d 1233 (10th Cir.2007), a Federal Tort Claims Act proceeding. In Pino, the United States 10th Circuit Court of Appeals certified to the Oklahoma Supreme Court the question of whether Oklahoma's Wrongful Death Statute provided a cause of action for the wrongful death of a nonviable stillborn fetus. Responding in the affirmative, the Oklahoma Supreme Court's decision adopted a rationale similar to that of the Pennsylvania Supreme Court, with its primary focus being upon the wrongful conduct of the tortfeasor and less so on the status of the fetus. Explaining its decision, the court in Pino observed:

Oklahoma's wrongful death statute, like other wrongful death statutes, was designed to fill a gap in the common law. It was enacted to provide damages for death caused by tortious conduct. This purpose would be denied if a wrongful death action were predicated on a live birth. To allow a tortfeasor to escape liability merely because of the fortuitous circumstance of a fetus dying moments before delivery rather than moments after birth would derogate [the state legislation's] purpose.

The legal protection afforded to the unborn has become a procedural and substantive issue arising in both traditional and non-traditional contexts. For example, the Supreme Court of New Jersey was recently confronted with an action in which the patient, individually and as administratrix of the estate of her “deceased infant,” brought a medical malpractice action against the physician who terminated her pregnancy, asserting wrongful death, survival, negligent infliction of emotional distress and lack of informed consent claims. The plaintiff, Rosa Acuna, contended that her obstetrician-gynecologist, Dr. Turkish, failed to provide her with informed consent to perform a procedure that terminated her pregnancy. Plaintiff's complaint alleged that Dr. Turkish breached a duty owed to her by failing to inform her of “the scientific and medical fact that [her six- to eight-week embryo] was a complete, separate, unique and irreplaceable human being” and that an abortion would result in “killing an existing human being.” The plaintiff further contended that every physician, before performing an abortion, must advise the patient in clear and understandable language that “the family member [the embryo] is already in existence and that the procedure ' indeed the central purpose of the procedure ' is intended to kill that family member.”

The Supreme Court of New Jersey rejected this contention, finding no common law duty requiring a physician to provide such instructions and to suggest that an abortion was tantamount to murder. Upholding the dismissal of plaintiff's lawsuit, the state Supreme Court observed: “There is not even remotely a consensus among New Jersey's medical community or citizenry that plaintiff's assertions are medical facts, as opposed to firmly held moral, philosophical, and religious beliefs, to support the establishment of the duty that she would impose on all physicians.”

Efforts have also been made to transfer the emerging common law to the more rigid framework of criminal prosecutions. In Commonwealth v. Booth, 564 Pa. 228 (Pa.2001), the defendant was charged with homicide by vehicle in a case where the victim was an unborn child. In pre-trial motions, the defendant requested the trial court to dismiss the charges on the ground that a fetus could not be the “victim” as the criminal law of Pennsylvania did not recognize a fetus as a “person.” The trial court agreed and dismissed the charges, after which appeals were filed and ultimately presented to the Pennsylvania Supreme Court. Quoting a decision of the Illinois Supreme Court, the Booth court observed “the extent to which the unborn child is to be afforded the legal status of one already born is one of the most debated questions of our time.” In Booth, however, controlling precepts of statutory construction and Pennsylvania's status as a “code jurisdiction” that did not recognize common law crimes, persuaded the state's highest court that only a fetus born alive could be the victim of a homicide or similar criminal act. In announcing its decision, the Pennsylvania Supreme Court recognized but distinguished its earlier decision in Amadio as “preeminently a tort decision [based upon factors] which are, for the most part, absent in the criminal context.”

Conclusion

Notwithstanding continuing developments in science and medicine that safeguard the health of unborn children, our appellate courts continue to struggle with the exact legal protection to be afforded the child still in the mother's womb. The practitioner litigating such emotion-laden claims has both the benefit and the burden of persuasive precedent to guide his efforts. For those courts on the fence on this issue the question of whether a wrongful death suit will lie just might be answered after the court looks at who did the thing that killed the unborn child, and under what circumstances.

Michael D. Brophy, a member of this newsletter's Board of Editors, is an attorney with Goldberg Segalla LLP, in the firm's Philadelphia office. Sarah X. Fang is an associate in the firm's Princeton, NJ, office.

More than a half-century ago, Janice Endresz, then seven months pregnant, was injured in a motor vehicle accident and within days delivered stillborn twins, a male and a female. Her husband, as administrator of the estate, brought suit and sought damages for the wrongful death of each child. On appellate review of the trial court's dismissal of the claims for wrongful death of the stillborn children, Chief Judge Fuld of the New York Court of Appeals refused to depart from established precedent, holding that a wrongful death action could not be maintained for the death of an unborn child. Endresz v. Friedberg , 24 NY.2nd 478 (NY 1969). This remains the law of New York. Bacani v. Rosenberg , 52 AD 3rd 417 (1st Dept. 2008).

The Historical Perspective

In the near half-century since the Endresz decision, however, developments in medicine and science have persuaded the legislatures and appellate courts of a majority of states that the rule should be otherwise.

The analysis begins with the roots of our jurisprudence in English common law, where the right of action for personal injury abated upon the injured person's death and the decedent's dependents were left without legal remedy. In response, England's Parliament passed the Fatal Accident Act of 1846, better known as Lord Campbell's Act, which created a cause of action for wrongful death. The legislatures of American state governments soon followed suit, enacting wrongful death and survival statutes. See generally, Malone, The Genesis of Wrongful Death, 17 Stan. Law Rev. 1043 (1965). As an exception, however, state courts refused to recognize a wrongful death action for children whose demise was caused by prenatal injury. The exclusion was based on multiple grounds, including: 1) lack of precedent; 2) the potential for fraud; 3) the theory that the mother and child were one unit; and 4) that the issue was one for legislative rather than judicial determination.

The Pennsylvania Supreme Court's decision in Carroll v. Skloff , 415 Pa. 47 (Pa. 1964), is instructive. The plaintiff there, the father of an unborn child, brought suit against a defendant physician claiming damages on behalf of the child's estate, and as next of kin. He claimed that the physician had, in the course of an operation on the plaintiff's wife, negligently destroyed the infant in utero, a viable fetus of 10 weeks' gestation. The justice writing for the court framed the legal issue for the Pennsylvania Supreme Court as follows: “Is there a right of recovery under the Pennsylvania Wrongful Death Act and Survival Statutes by the administrator of an estate on behalf of an infant aborted, while en ventre sa mere, as the result of a direct trauma?”

In a prior decision, the Pennsylvania Supreme Court upheld a cause of action on behalf of an infant born alive for damages resulting from injuries that had been tortiously inflicted prior to the child's birth. Justice Eagan distinguished the issue in Carroll, stating that it was “patently and materially different. The statutes, on which the present complaint is based, do not provide recovery for injuries to a stillborn fetus.”

The rationale adopted by the Carroll court was consistent with many other opinions of the era. There, the court observed that the cause of action created by the Survival Statute was strictly derivative in nature, “grounded upon an existing personal cause of action which the deceased could have but did not institute during his or her life-time. It, therefore, necessarily follows that there must have been an independent life in being which could have instituted the action prior to death. Such, quite obviously, is not the case here.”

Turning to the Wrongful Death Act, the Pennsylvania Supreme Court determined that its state legislature could never have intended to provide for recovery by the estate of an unborn fetus. (The term “fetus” has been defined as “an unborn young from the end of the eighth week to the moment of birth as distinguished from the earlier embryo.” American Heritage Dictionary 499 (Second College Ed. 1982). A fetus has also been defined as “an unborn child. The unborn offspring of any viviparous animal; specifically the unborn offspring in the post-embryonic period after major structures have been outlined (in man from seven or eight weeks after fertilization until birth.)” Black's Law Dictionary 559 (5th Ed. 1979). Viability is defined as “capability of living ' That stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems.” Id. at 1404.) Under Pennsylvania's Wrongful Death Act, the damages recovered in any such action were to be awarded to certain named heirs “in the proportion they would take his or her personal estate in case of intestacy.” Under then-established Pennsylvania law, a fetus still in its mother's womb could take property by devise or otherwise only if subsequently born alive. If the fetus is never born, it did not and could not have an estate from which others could take. Recognizing such Pennsylvania precedent from the 19th century, the court in Carroll wrote: “When the legislature provided that the damages recovered under the Act shall go according to the intestate laws, it manifestly intended to limit the created cause of action [i.e., the Wrongful Death Act] to those instances wherein the child's existence is recognized by the intestate laws.”

Explaining the rationale of the Pennsylvania Supreme Court's decision, the justice writing for the court touched upon a principle of tort law which in later years would guide courts facing similar issues down a much different path:

Further, there are sound and persuasive reasons for allowing recovery where the child is born alive suffering from injuries received during the gestation, which do not exist under the present circumstances. If the infant is born deformed or handicapped as a result of such injuries, justice requires that compensation be given. The responsibility of the parents is immeasurably extended and broadened, where the child may necessarily become a charge upon the community. Also, the fact that he or she is born alive tends to effectively permit a just result, and reduces materially the inherent complex problems instant to causation in the pecuniary loss suffered. Many material facts, capable of proof, may be placed before the jury to aid them in fixing the cause and proper remuneration. On the other hand, if the fetus is stillborn, speculation as to causation and particularly loss suffered is unreasonably increased. Damages given under such circumstances would not be for compensation purposes, but rather to punish the wrongdoer. This is not the type of recovery either the Wrongful Death Act or the Survival Statute intended to provide. Moreover, the parents, who would be the real beneficiaries, are not without a remedy and may be fully compensated for their loss in their own independent actions. Id., 415 Pa. at 49-50.

The Newer Thinking in Pennsylvania

More than two decades later, the Supreme Court of Pennsylvania would revisit the issue of whether a right of recovery existed under its Wrongful Death and Survival Statutes on behalf of a stillborn child who died as a result of injuries received en ventre sa mere. By the time it announced its decision in Amadio v. Levin , 509 Pa. 199 (Pa. 1985), 28 states and the District of Columbia had recognized, under their respective survival and wrongful death statutes, causes of action filed on behalf of the estates of stillborn children for fatal injuries they received while viable and still within their mothers' wombs. By 1985, Pennsylvania's jurisprudence had evolved to acknowledge that children, while still in utero, were individuals having existence as separate creatures from the moment of conception. Responding to one aspect of the Carroll court's decision two decades before, the Amadio court wrote:

As we have observed in the part, our wrongful death and survival statutes create a derivative cause of action, but those statutes are remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act, which is to provide a cause of action against one whose tortious conduct caused the death of another. By limiting the right to bring an action to those children born alive, we were giving the statute a narrow reading and thereby perpetuating the much criticized rule of the common law which made it “more profitable for the defendant to kill the plaintiff than to scratch him.” Prosser, Law of Torts Section 127 (4th Ed. 1971).

The Amadio majority was also confident that issues of proof and evidence could be resolved. The underlying premise that difficulty in obtaining proof of the wrong could bar the right to bring an action was rejected. The court was also confident that difficulties in proving damages in the case of a stillborn infant should not “be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who survived delivery for a few minutes, hours or days.” Recognizing that claims related to injuries by children born alive had been litigated for many years, the majority in Amadio expressed confidence “that the experience gained from handling such matters has matured our bench to the point when we can now extend the application of these cases to cases where the child is born dead due to death causing injury while en ventre sa mere.”

Some States Remain Reluctant to Recognize the Cause of Action

Historically, courts had expressed reluctance to recognize the cause of action for a stillborn child, in part based upon the notion that the parents would recover twice for their emotional distress. The Amadio court, and others, rejected this logic because it perpetuated the concept of a child inseparable from its mother as distinguished from its status as “an individual.”

The rationale and holdings of cases such as Amadio were not persuasive nationwide. Indiana, for example, continues to provide redress only for children born alive, who therefore fall within the scope of the state's Child Wrongful Death Statute. This legislation, which arguably creates an unprotected class of parents whose children are not born alive, has been upheld in the face of claims that it violates both state constitutional guarantees and the Equal Protection Clause of the Fourteenth Amendment. See, e.g., McVey v. Sergeant , 855 NE.2nd 324 (In. 2006).

Similarly, the wrongful death and survival statutes of the state of Texas prohibit the parents of a stillborn fetus from bringing claims for relief. The Texas appellate courts have, however, recognized exceptions to this general rule. In Brown v. Shwarts , 968 SW 2nd 331 (Tex 1998), the Texas Supreme Court held that a fetus later born alive was a “patient” within the meaning of Texas legislation such that the statute of limitations for its wrongful death began to run from the date of prenatal injuries. The court still required “live birth” to occur for the fetus to achieve its status as a “patient,” however.

In 2003, the Texas legislature granted the parents of a stillborn child a cause of action under the state's Wrongful Death Act, defining “individuals” within its scope to include “an unborn child at every stage of gestation from fertilization until birth.” However, the statute also created specific exceptions for claims arising out of medical malpractice or similar circumstances.

For Many Courts, the Type of Wrongful Conduct Matters

The issue of recovery for the wrongful death of a stillborn, nonviable fetus arose in a somewhat different context in Pino v. U.S. , 507 F3d 1233 (10th Cir.2007), a Federal Tort Claims Act proceeding. In Pino, the United States 10th Circuit Court of Appeals certified to the Oklahoma Supreme Court the question of whether Oklahoma's Wrongful Death Statute provided a cause of action for the wrongful death of a nonviable stillborn fetus. Responding in the affirmative, the Oklahoma Supreme Court's decision adopted a rationale similar to that of the Pennsylvania Supreme Court, with its primary focus being upon the wrongful conduct of the tortfeasor and less so on the status of the fetus. Explaining its decision, the court in Pino observed:

Oklahoma's wrongful death statute, like other wrongful death statutes, was designed to fill a gap in the common law. It was enacted to provide damages for death caused by tortious conduct. This purpose would be denied if a wrongful death action were predicated on a live birth. To allow a tortfeasor to escape liability merely because of the fortuitous circumstance of a fetus dying moments before delivery rather than moments after birth would derogate [the state legislation's] purpose.

The legal protection afforded to the unborn has become a procedural and substantive issue arising in both traditional and non-traditional contexts. For example, the Supreme Court of New Jersey was recently confronted with an action in which the patient, individually and as administratrix of the estate of her “deceased infant,” brought a medical malpractice action against the physician who terminated her pregnancy, asserting wrongful death, survival, negligent infliction of emotional distress and lack of informed consent claims. The plaintiff, Rosa Acuna, contended that her obstetrician-gynecologist, Dr. Turkish, failed to provide her with informed consent to perform a procedure that terminated her pregnancy. Plaintiff's complaint alleged that Dr. Turkish breached a duty owed to her by failing to inform her of “the scientific and medical fact that [her six- to eight-week embryo] was a complete, separate, unique and irreplaceable human being” and that an abortion would result in “killing an existing human being.” The plaintiff further contended that every physician, before performing an abortion, must advise the patient in clear and understandable language that “the family member [the embryo] is already in existence and that the procedure ' indeed the central purpose of the procedure ' is intended to kill that family member.”

The Supreme Court of New Jersey rejected this contention, finding no common law duty requiring a physician to provide such instructions and to suggest that an abortion was tantamount to murder. Upholding the dismissal of plaintiff's lawsuit, the state Supreme Court observed: “There is not even remotely a consensus among New Jersey's medical community or citizenry that plaintiff's assertions are medical facts, as opposed to firmly held moral, philosophical, and religious beliefs, to support the establishment of the duty that she would impose on all physicians.”

Efforts have also been made to transfer the emerging common law to the more rigid framework of criminal prosecutions. In Commonwealth v. Booth , 564 Pa. 228 (Pa.2001), the defendant was charged with homicide by vehicle in a case where the victim was an unborn child. In pre-trial motions, the defendant requested the trial court to dismiss the charges on the ground that a fetus could not be the “victim” as the criminal law of Pennsylvania did not recognize a fetus as a “person.” The trial court agreed and dismissed the charges, after which appeals were filed and ultimately presented to the Pennsylvania Supreme Court. Quoting a decision of the Illinois Supreme Court, the Booth court observed “the extent to which the unborn child is to be afforded the legal status of one already born is one of the most debated questions of our time.” In Booth, however, controlling precepts of statutory construction and Pennsylvania's status as a “code jurisdiction” that did not recognize common law crimes, persuaded the state's highest court that only a fetus born alive could be the victim of a homicide or similar criminal act. In announcing its decision, the Pennsylvania Supreme Court recognized but distinguished its earlier decision in Amadio as “preeminently a tort decision [based upon factors] which are, for the most part, absent in the criminal context.”

Conclusion

Notwithstanding continuing developments in science and medicine that safeguard the health of unborn children, our appellate courts continue to struggle with the exact legal protection to be afforded the child still in the mother's womb. The practitioner litigating such emotion-laden claims has both the benefit and the burden of persuasive precedent to guide his efforts. For those courts on the fence on this issue the question of whether a wrongful death suit will lie just might be answered after the court looks at who did the thing that killed the unborn child, and under what circumstances.

Michael D. Brophy, a member of this newsletter's Board of Editors, is an attorney with Goldberg Segalla LLP, in the firm's Philadelphia office. Sarah X. Fang is an associate in the firm's Princeton, NJ, office.