A wrongful death occurs when someone dies as the result of another person's actions (or failure to act when they should have). Can you sue someone for the wrongful death of an unborn child? Several different things have to be considered in order to answer that question.
1.) Are you the proper person to bring the wrongful death claim?
Survivors of the unborn child have to bring the lawsuit to civil court and ask for compensation. The law limits who can bring the lawsuit to either very close relatives or designated beneficiaries. In most courts, if the mother or father is still living, that's who would have to file the claim. If not, it could be possible for the grandparents or siblings of an unborn child to file suit. Sometimes, the person designated to be in charge of the mother's estate is the only proper person who can bring the lawsuit.
2.) Was the unborn child the victim of a violent federal crime?
Ever since 2004, the Unborn Victims of Violence Act has made it possible for people to sue for the death of an unborn child if the child died as a result of a violent federal crime committed against the mother, even if the mother survives.
One example is that of Nakehba Hooper, who is alleging that her unborn baby died because she was denied proper medical care while incarcerated, which is a violation of her civil rights and a federal crime. Even though the defendants in her lawsuit haven't been charged in criminal court, the federal judge in charge is allowing the civil case to proceed. The evidence required to win a civil suit isn't as high as that of a criminal case, making it possible to win a wrongful death lawsuit even if there is no criminal case or when a criminal suit doesn't result in a conviction.
3.) Is the unborn child a legal person under your state's laws?
This is probably the most complicated question that has to be answered. Each state has its own laws regarding when an unborn child is considered legally a person for the purposes of a wrongful death lawsuit (or even a criminal case). Only 40 states allow for a wrongful death claim on behalf of an unborn child.
In some states, such as California, an unborn child is only considered a legal person if he or she would have been viable, or able to survive outside of the womb if delivered early. In other states, such as Georgia, wrongful death claims are allowed if the unborn child had reached the point of "quickening." Quickening can be a difficult point to determine, because it is generally defined as somewhere after the 10th week of gestation, once the mother is able to feel the baby move.
That means that the same set of circumstances can leave you with very different options, depending on where you live. Many wrongful deaths involving an unborn child are the result of accidents that have caused a miscarriage or medical errors. Some are the result of purposeful violence against the mother. In all cases, they cause a great deal of heartbreak and loss, so consult with an attorney to see whether or not you have the option of a wrongful death claim. If not, you may be able to file a personal injury lawsuit instead due to your own emotional pain and suffering.
Share16 October 2015
Defective products are produced and sold to consumers all of the time. Unfortunately, some of these defective products cause consumers injuries when they malfunction. So, what can you do if a defective product causes you or someone that you love some kind of injury? This blog will show you how the legal system works to protect consumers from instances such as this. You will find out about personal injury lawsuits and what it takes to file and proceed with a lawsuit to hold the company that manufactured that defective product responsible for the role that they played in the pain that has been experienced.