In a decision issued about three weeks ago, the Illinois Appellate Court reaffirmed this reasoning in a case that involved a pregnant woman who allegedly negligently caused the death of her own fetus. Even though, by statute, Illinois recognizes the right of the next of kin to claim for the wrongful death of a fetus, the court found that this right could not be claimed against the mother. The case is called National Railroad Passenger Corporation v. Terracon Consultants, and (for now) you can find a copy of the decision here.
In this case a pregnant woman was involved in an accident with a train. As a result she died, which also resulted in the death of her fetus. After settling claims for the wrongful death of the mother and fetus, one of the defendants sued the mother's estate in contribution claiming the mother's negligence was a cause of the fetus' death. The plaintiffs then tried to distinguish Stallman by arguing that Stallman was not a contribution claim. In response, the court correctly affirmed the lower court's dismissal of the complaint based on the principles expressed in Stallman, staing that
We are not persuaded by the plaintiffs' argument that the public policy considerations discussed in Stallman−which . . . involved a fetus subsequently born alive−do not apply equally when the fetus does not survive. As the defendants point out, declining to recognize the applicability of the Stallman holding to situations where a fetus does not survive the injuries allegedly inflicted unintentionally by the mother of the fetus would create the paradoxical and potentially unjust situation wherein a fetus that did not survive its injuries could bring a claim against its mother, but a fetus that did survive its injuries could not. We agree with the defendants that duty should not hinge on the nature and extent of the injury involved. The Stallman court declined to recognize a legal duty on the part of a pregnant woman, during her pregnancy, to "guarantee the mental and physical health of another" at birth, because the recognition of such a legal duty would create an environment wherein "[m]other and child would be legal adversaries from the moment of conception until birth." Stallman v. Youngquist, 125 Ill. 2d 267, 276 (1988).
In accordance with this reasoning, and the other thoughtful and compelling public policy reasoning put forward by the Stallman court ..., we believe the court likewise would have rejected the idea that a pregnant woman has a legal duty, during her pregnancy, to guarantee that her fetus will survive to birth, as that too would create an environment where mother and child were legal adversaries during the pregnancy. Accordingly, although we recognize that the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2008)) itself does not specifically prevent an unborn fetus from asserting a claim against an allegedly negligent mother, we hold that the recognition of a cause of action for wrongful death asserted by an unborn fetus against the mother of the fetus would be incongruent with the reasoning underlying the Stallman holding that there is no duty on the part of a mother to her unborn fetus. Therefore, we decline to recognize such a duty and such a cause of action.I think the court here reached the correct result. It can certainly be argued that pregnant women have a moral duty to exercise reasonable care to prevent injuries during pregnancy, but the question is whether that moral duty should be a legal duty, a violation of which can be vindicated through tort law. I happen to think Illinois has reached the correct decision on this issue, for the reasons explained in Stallman and in Remy v. Mcdonald, 801 NE2d 260 (Mass 2004).