Two recent cases from the Alabama Supreme Court hold that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.
In Hamilton v. Scott, No. 1100192 (Ala. Feb. 17, 2012, Amy Hamilton alleged that several defendants negligently caused the death of the child she was carrying in utero. After discovery, defendant moved to dismiss, arguing that Alabama law required that the fetus had to viable outside the womb before the mother could maintain a wrongful death lawsuit. The case was dismissed.
The Alabama Supreme Court reversed, citing the recent decision in Mack v. Carmack, No. 1091040 (Ala. Sept. 9, 2011) that raised the same issue. This is the holding in Mack, re-affirmed in Hamilton:
In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover,it is an endeavor that unfairly distracts from the well established fundamental concerns of this State’s wrongful-death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that ‘logic, fairness, and justice’ compel the drawing of such a line; instead, ‘logic, fairness, and justice’ compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.
In accord then with the numerous considerations discussed throughout this opinion, and on the basis of the legislature’s amendment of Alabama’s homicide statute to include protection for ‘an unborn child in utero at any stage of development, regardless of viability,’ § 13A-6-1(a)(3), [Ala. Code 1975,] we overrule Lollar and Gentry, and we hold that the Wrongful Death Act permits an action for the death of a previable fetus. We therefore reverse the summary judgment in favor of Carmack and remand the action for further proceedings consistent with this opinion.
Tennessee law does not currently permit the recovery of damages for the unborn child in this type of case. However, such a result would be mandated by a statute, not case law. T.C. A. Sec. 20-5-106 (d) (“’person’ includes a fetus that was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development wherein it could reasonably be expected to be capable of living outside the uterus.”)
It is interesting that the same result is not true if a person kills a non-viable fetus while committing a criminal act. T.C.A. Sec. 39-13-107. So, in Tennessee, we are willing to subject a person to a charge of murder for causing the death of an unviable fetus but we are refuse to hold the same person responsible for paying monetary damages for that same act.