The Loss of an Unborn Child — Wrongful Death?

Virginia recently passed a new statute, which allows a mother whose child is killed in utero due to the negligence of another to sue for her child’s wrongful death.

Since Roe v. Wade, this country has long been locked in a conflict over the status of a fetus. Is a fetus a person under the law?  If so, does it have this status at conception or at the point when becomes viable outside of the womb?

These questions often come up in the context of proponents and opponents of the right to abortion in this country.  However, the same issues arise in the context of wrongful death lawsuits.

This new statute brings Virginia partially in sync with the rule in Maryland, which already allowed for wrongful death lawsuits on behalf of an unborn child.  The Maryland rule is laid out in the case of Kandel v. White, a case that also illustrates the difference between the Maryland and the new Virginia rule.  In Kandel, Cheryl Scott, who was eight weeks pregnant, was a passenger in a vehicle that collided with an ambulance.  The injuries from the accident led to the termination of Ms. Scott’s pregnancy, and ultimately, to her death.

Ms. Scott’s representative sued on behalf of her and her unborn child.  The Court held that in Maryland, a wrongful death lawsuit could only be brought for a child who would have been viable outside the womb. Cheryl Scott had been only eight weeks pregnant, and her estate was unable to sue for wrongful death successfully. Virginia’s law, by contrast, establishes a wrongful death action for the death of a fetus from the time of conception.

The death of an unborn child can be a very painful, lonely and life-shattering experience.  It is important to take care of the medical and psychological issues that result.  When you are ready, our wrongful death attorneys are available to provide our support to help you seek justice.

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