Jurisdictional laws vary on whether a parent can file a wrongful death claim on behalf of an unborn child. The issue of such a claim typically arises in two situations: when the child dies in utero because of the mother’s death, and when the child is injured before or during delivery.
Liability for an Unborn Child’s Death
Many people believe that because the child has not been born yet, they’re not a person and a wrongful death claim is inappropriate. These claims have only recently been recognized, as courts have decided that unborn children should be recognized as persons as long as they have reached viability. The decision to permit wrongful death claims in these cases depends on these reasons:
• The wrongful conduct of the defendant shouldn’t be ignored only because the child was unborn.
• The death of an unborn baby should be no less significant than the death of a child already born.
• The words “unborn child” mean that the fetus is recognized as a person because he or she is viable.
When are Unborn Babies Considered Viable?
An unborn child is legally recognized as a person when he or she is viable at the time of death. A fetus is regarded as viable when it develops to a point where it could survive outside the womb without the aid of technology. Most jurisdictions set the viability point at 24 weeks of pregnancy. However, some areas do not follow the same rule, and parents may not bring a wrongful death suit for a fetal death, regardless of the gestation stage of the unborn child.
Bringing a Claim After Birth Injuries
If a child suffers injuries due to medical malpractice while in utero, and he or she is born alive but dies shortly after delivery, parents and a wrongful death lawyer in Bronx, NY, can typically file a suit. Most areas recognize such a child as a person at this point, and claims can be brought by parents on the child’s behalf.
How Lawyers Can Help
If a parent loses an unborn baby, a wrongful death lawyer in Bronx, NY, can help them recover damages for their loss, pain and suffering. The Law Office of Ada R. Pretto, P.L.L.C., can advise clients on state law regarding wrongful death in unborn babies.
