The Alabama Supreme Court recently unanimously reaffirmed its 2011 ruling that recognized a cause of action for the wrongful death of an embryo even before it was a viable fetus. In this case, the mother lost her pregnancy during the first trimester, which means the embryo would not classify as "viable," the most common classification used by jurisdiction to determine whether a cause of action for pre natal wrongful death should be recognized. The case is called Stinnett v Kennedy and you can find a copy here.
The issue of whether to recognize a wrongful death cause of action is not new and many jurisdiction have addressed it. Yet there are three different approaches to it. Some recognize a cause of action for wrongful death regardless of the level of development of the fetus at the time of the accident. Typically, it is said these jurisdictions recognize the cause of action from the moment of conception. Illinois, for example, follows this approach in its wrongful death statute. Other jurisdictions do not recognize a wrongful death claim for pre natal death at all, finding that for there to be death there has to be life and life begins when the fetus actually survives (however briefly) independently of the mother. But, the most common approach is to hold that a cause of action should be recognized from the moment when it can be argued the fetus is "viable," meaning from the moment the fetus could survive independently of the mother.
Back in 2011, the Alabama Supreme Court recognized the cause of action in in part by making reference to a state criminal statute law that recognizes homicide of a person to apply to a fetus, regardless of viability. (This reminds of a scene in an old episode of the popular TV show Law & Order, which addressed whether the law could be interpreted to say that very thing in a state that did not have such a statute.) The reference seems relevant since wrongful death statutes usually refer to the death of a "person" so courts have to define at what point someone "becomes" a person. In Alabama, the statute states it applies to the death of a "minor child" but does not define "minor child."
But back to the new case... So, since 2011, Alabama recognizes wrongful death claims for the death of a fetus since conception. The issue in the new case, however, challenged the Court's reliance on the criminal statute which is a different question.
The criminal statute recognizes an exception for unintentional "mistakes" by doctors. This means that doctors can not be prosecuted criminally for unintentional conduct that results in the death of a fetus. In other words, the legislature decided not to recognize the criminal prosecution of negligent conduct.
Based on this exception to the criminal statute, the defendant in the case argued that since the statute upon which the civil case seems to be based does not recognize criminal liability for negligence, it would be inconsistent to recognize a civil cause of action for the same conduct.
The Court, however, rejected the argument. The argument would make sense if the Court had recognized the cause of action based on the criminal statute using a "negligence per se" type analysis. In such a case, it would be inconsistent to impose what could be "ruinous liability" for conduct that legislature did not consider bad enough to impose criminal liability for it. But that is not the type of analysis upon which the court based its conclusion. The Court looked to the statute, not as an expression of a duty in tort law, but merely for guidance to define the word "person."