Fetus/Baby Wrongful Deaths: How These Lawsuits Work

Posted on: 28 July 2018

Defining what is and is not a baby is at the heart of every abortion. It is also at the heart of many wrongful death cases, as state law makes that determination, not federal law. Even though Roe v. Wade gave women the permission to terminate pregnancies, there was nothing in place that helped determine when, exactly, a life was a life. So when a fetus dies late in a pregnancy or the infant takes breath after leaving the womb and then dies, state law determines whether or not mothers can sue for wrongful death. Here is more on these circumstances to help you determine if you have a wrongful death case in regards to your born or unborn child.

Fetal Rights

Surprisingly, thirty-eight states have fetal rights laws. Twenty-nine of these states prohibit early-stage homicide and termination of embryos or fetuses. The remaining twelve states do not recognize embryos or fetuses as living beings whatsoever. Therefore, there are wrongful death laws connected to fetal rights in the states that carry fetal rights laws.

Newborn Rights

Newborn rights have slightly gray areas in the law in some states. The infant must draw its first breath to be considered a living being in these states. In other states, the newborn has rights from the moment it exits its mother.

Accidental death on any accounts of a newborn may or may not be considered a wrongful death. It requires a trial or hearing before a court judge to determine whether the baby would have survived if the baby had not died under unusual circumstances after its immediate birth. All infants that die after they have been taken home for a week or more may or may not be the result of the hospital staff's negligence, depending on the situation. If one of the parents actually causes the newborn's death at home, it is always considered a homicide.

Circumstances Surrounding the Death of the Fetus or Infant

If your fetus's death was the result of a procedure you did not agree to, you have a wrongful death case in most states. If someone beat you while you were pregnant and the fetus aborted, you have a wrongful death case. If your baby died because the doctor did not act quickly to save the baby, you have a case. If a nurse smothered the baby because she was stressed, you have a case. The only way to know for certain that you have a wrongful death case is to meet with a wrongful death lawyer in your state and county to discuss the particulars.