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Should Connecticut Allow Wrongful Death Claims on Behalf of a Fetus?


Posted by Christine Antonellis Norton and Michael D'Amico on Nov 19, 2015 in Wrongful Death

Christine NortonThe Supreme Court may soon be addressing whether a non-viable fetus born alive has the right to pursue a wrongful death action.  The question will be whether a fetus, incapable of living independent of its mother, has a cause of action for wrongful death where its birth and subsequent death were caused by another.   In Foster v. De Cholnoky, after considering the expert testimony, the Bridgeport Superior Court concluded that “the term fetus is used when the developing life is still in the mother, and the term viable is used to describe whether this developing life would survive if it were born.”  This Court determined that the developing life at issue was nonviable at birth and the baby survived about an hour and half after birth before dying.

To succeed in a cause of action for wrongful death under C.G.S. §52-555 the plaintiff must prove that there was a violation of the standard of care which caused the subject death.  This action is a continuance of that which the decedent could have asserted had she lived.  The right to pursue a wrongful death action is grounded in the deceased’s ability to pursue an action prior to death. The defendant’s position in this case was that the “viability standard” applied and that C.G.S. §52-555 does not permit a cause of action for wrongful death when the fetus expires prior to becoming viable.  In other words, since the fetus was not viable at the time of injury or death, it did not have the ability to pursue an action prior to death.

The defense cites to numerous cases in support of this contention, including Roe v. Wade and its progeny.  The defense focused on the issue of viability, noting that under Roe v. Wade the state could not exercise control over a fetus until it was viable, thus the defense concluded that a fetus had no civil rights until it was viable.  The defense would have the Court analogize the Roe decision to protect a woman’s interest in obtaining an abortion prior to fetal viability to the defendant’s interest in preventing a wrongful death action for the premature birth and death of her nonviable fetus.  The defense would have the distinction between fetal viability and non-viability supplant the distinction between a woman’s right to exercise control over her body and the actions of a tortfeasor.  The defendant’s arguments appear to be both misinformed and perhaps dangerous to the rights of woman laid out by Roe v. Wade.  A woman deciding to abort does not stand in the shoes of a negligent third person acting on her fetus. The Court wisely chose to parse Roe v. Wade out of the argument, noting it was inapplicable to rights of a nonviable fetus that died after a premature birth due to the negligence of another.   

The plaintiff’s position was that the “born alive rule” applied and a developing life has a right to pursue wrongful death where that life was born and then died from injuries caused by the defendants.  The Superior Court agreed. 

The defendant noticed its intent to appeal this ruling.  The defense contends that only a viable fetus capable of living independently upon birth is a “legal person” and only a “legal person” is afforded the rights and protections of our laws.    The defense appears to be missing the point: but for the defendant’s negligence the nonviable fetus in this case would not have been injured, been born prematurely, or died.