Thursday, April 25, 2013

Colorado Supreme Court refuses to decide case on whether to recognize a wrongful death case for the death of a fetus

The Colorado Supreme Court has rejected a petition to review a case on whether to recognize a cause of action for the wrongful death of a fetus.  The case was originally filed by the widower of a pregnant woman who allegedly died because of the defendant's medical negligence.  The woman was pregnant with twins at the time.  The husband sued for the wrongful death of his wife and the two stillborn fetuses.  The lower court, however, dismissed the claims for the fetuses holding that "under Colorado law a fetus is not a 'person.' "  The case was appealed to the Colorado Supreme Court which just denied review.  You can read more about the story here.

I wonder why the Court denied review.  This is not only not an uncommon issue which has been addressed in many other jurisdictions, it is also very interesting and important.  Some jurisdictions have adopted the view that the state of gestation is irrelevant, and thus that there can be a wrongful death claim.  Others say that for there to be a death there has to be life first and that life begins at birth.  Most, however, compromise somewhere in the middle holding that there can be a claim as long as the plaintiff can show the fetus was viable at the time of the incident. 

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