Do Wrongful Death Laws Apply to a Stillbirth Case?

An examination of how state laws on wrongful death claims apply to the case of a stillborn fetus.

All states have wrongful death laws that allow a plaintiff to get a financial recovery for the death of a close relative. Some, but not all, states also have wrongful death statutes that give parents the right to recover damages for the death of a stillborn infant. This article discusses how wrongful death claims for a stillborn infant work in general, with the caveat that it's important to check the law in your own state or talk to a lawyer for specific rules.

What Is a Wrongful Death Claim?

A wrongful death claim is based on a statute, some version of which exists in all 50 states, that permits the heirs or relatives of a deceased person to get compensation when the death was caused by the defendant's wrongful or negligent act.

Prior to the creation of wrongful death and survivor statutes in the nineteenth century, the family and heirs of a person killed by another’s negligent or intentional act could not sue for damages because the legal claim (“tort”) could only be brought by the injured person -- in other words, the claim died when the plaintiff died.

The wrongful death and survivor statutes were created by state legislatures to compensate close family members and other heirs for the death of their family member, including damages for lost financial support, the decedent’s pain and suffering prior to death, funeral expenses and other damages depending on the statute and the context of the case.

See Survival Actions vs. Wrongful Death Claims for more on the legal elements of these types of cases.

An Intentional or Negligent Act Must Have Caused the Still Birth

The remedies provided by wrongful death statutes are only available if the defendant either intentionally or negligently caused the death.

The tragedy of a stillborn infant is not always the fault of a medical provider. The provider must have somehow been responsible for the stillbirth. Note that many states do not allow medical malpractice cases for negligent stillbirth, but do apply the wrongful death statute to negligently or intentionally caused stillbirths. In those states, the plaintiff will typically need to follow all of the medical malpractice litigation procedures to prove liability before the wrongful death statute can apply.

If the stillbirth was caused by a defendant outside of the medical context, for example a car accident, then that defendant must actually be proven liable for negligence before the wrongful death statute will apply.

Not All States Apply Wrongful Death Statutes to Stillborn Fetuses

The majority of states apply the wrongful death statute to stillborn fetuses, but many do not. In those states that do not, the rationale is that the fetus is not a “person” under the statute. Many of those same states, however, do allow other types of cases based on a stillbirth, for example negligent infliction of emotional distress.

The Fetus Must Have Been Viable or Moving in the Womb in Some States

In most states that do apply the wrongful death statute to stillborn infants, the fetus must have been viable at the time of the act that led to the stillbirth. “Viable” means the infant could survive outside the womb on its own, or with medical aid. Currently, the earliest point at which an infant is viable is around 24 weeks. If the negligent act that eventually led to the stillbirth was committed before viability, the wrongful death statute will not apply.

In a few other states that apply the statute, the fetus must have been “quick” at the time of the incident, i.e. moving in the womb to an extent the mother could feel (a heartbeat alone is insufficient). An infant is often “quick” weeks before it is viable, so in these states there is a better chance the wrongful death statute will apply.

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