The issue of whether a fetus is a legal person if it is not able to live outside the womb is one that has been debated for a long time. This question most often surrounds the issue of abortion when it comes up in courts here in Illinois and around the country. However, that was not the case in a wrongful death claim filed by a couple whose fetus died from premature birth injuries.
The woman had gone to the doctor, a licensed gynecologist and obstetrician, to have an intrauterine birth control device removed. During the procedure, the woman’s fetal membrane was ruptured. According to the couple’s medical malpractice claim, the doctor failed to ascertain prior to attempting to remove the device whether the woman was pregnant.
As it turns out, the Connecticut woman was 22 weeks pregnant. The fetus was delivered alive, but the baby did not even live for two hours. When the couple filed their lawsuit against the doctor for the death of their baby, the question arose as to whether the fetus could be considered a legal person. The judge ruled that the case could go forward because courts around the country have ruled on both sides, and Connecticut has no specific case law regarding the issue.
Here in Illinois, a wrongful death claim may be filed on behalf of a fetus who died due to pre-birth or birth injuries. There is some case law here in Illinois that indicates that if a fetus is born alive, it could be considered viable even if it only lives for a few moments. Therefore, the first step in any such case would be to prove to the court that the fetus was viable. This issue can quickly become complex, and it would be in any parent’s best interest to enlist the assistance of counsel in this or any other wrongful death claim.
Source: courant.com, “Connecticut Fetal Death Lawsuit Settled“, Jan. 4, 2016