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Wrongful Death of an Unborn Fetus

Wrongful death is defined as any human fatality resulting from the tortious or criminal act or wrongdoing of a third party. Whether there are consequences to the actor in criminal court, the plaintiffs in a wrongful death claim may sue the third party for financial compensation in civil court. This compensation could be for medical bills, loss of income, and funeral expenses. For example, if a driver hits a pedestrian and the pedestrian dies, the family may sue the driver for wrongful death even if the driver is acquitted of vehicular manslaughter. This is the difference between a civil trial and a criminal trial. In the criminal trial, the defendant is defending against criminal charges, while in a civil suit, they’re defending themselves from noncriminal accusations.

However, the rules change when it comes to the death of an unborn fetus. States have varying laws when it comes to the wrongful or unlawful death of a fetus, but there was a time when it was not possible at all to sue for wrongful death of an unborn fetus. This is because a fetus is not considered a separate entity from the mother until birth, so while the mother can sue for loss of consortium because of the death of the unborn child, there cannot be a wrongful death claim unless the mother also dies.

There are now states that consider a wrongful death claim for the unborn fetus as a subset of what is sometimes called feticide (fetus homicide) laws, including Texas and Michigan. However, the application of such laws can be highly complex, not only because of existing abortion laws but also because it can impact many future civil rights arguments. The status of an unborn fetus is not a simple matter; there are states where the law that require the fetus to draw at least one breath before any civil rights can be conferred to them.

When the death of an unborn child is the result of the negligence or willful wrongdoing of a third party, state law may allow eligible parties to sue for compensation.