Wrongful death of a fetus

Just days after we finished discussing pre-natal torts in class, comes news that a lawsuit has been filed in Nebraska asking the court to recognize a claim for the wrongful death of a fetus for the first time.  At issue in the case is the applicability of a state statute that extended legal protections to fetuses at any stage of development.  Although the law is not a wrongful death statute itself, the plaintiffs are arguing it should be taken into account when deciding the wrongful death case.  For more on this story go to The San Francisco Chronicle and the ABA Journal.com.

The issue, of course, is not new.  You may remember that last February, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.  See here.  And, as you may also know the wrongful death statute in Illinois recognizes a claim for the wrongful death of a fetus.  It is not clear whether this is a majority approach or even a "trend" among jurisdictions.  Last time I checked, the majority view on this subject was to "draw the line" at viability.  The third option, followed by another minority of states, is to recognize the wrongful death claim only if the child is born alive, survives for an instant on his or her own and then dies.  Those states draw the line at birth.