Does Georgia Allow a Wrongful Death Claim for an Unborn Child?
States across the nation have confronted the question as to whether or not a wrongful death claim may be pursued in a case where an unborn child is killed due to the negligent acts of another, unsafe product, criminal wrongdoing, or medical malpractice. Often, the issue of wrongful death occurs in one of two scenarios: (1) the mother is unharmed or survives, but the fetus sustains injuries leading to death in utero or at the time of delivery; or (2) the fetus perishes because the mother carrying the child is killed. In such situations, the legal question arises as to whether or not there is a valid separate claim for the wrongful death of the fetus – apart from any claims regarding the death of, or injuries sustained by, the mother carrying the baby.
Still Unresolved in Some States
Approximately one-third of the states in the nation have either (1) remained silent on the issue or (2) decided that only persons who pass away after being born can be the subject of a wrongful death lawsuit. The other two-thirds of the country – including Georgia – allow a cause of action for the wrongful death of a fetus. Most of these states, however, have a requirement that the baby reaches a certain point of development prior to death in order to be the subject of such a claim.
The trend in the law is leaning toward allowing parents to sue for the wrongful death of an unborn child – at least in some particular scenarios. Some states have passed laws permitting such a cause of action while others have created this legal right through court decisions. Some reasons for allowing fetal wrongful death claims include:
The word person or child within a wrongful death statute can be interpreted to include a viable fetus;
The death of a viable fetus is a similar loss than that of a baby who only survived a short period of time after birth and, therefore, the parents in each scenario are equally deserving of monetary compensation; and
The wrongful conduct of a defendant should not go unpunished simply because the child whose death he or she caused was not yet born.
Georgia and the Point of “Quickening”
Under Georgia law, parents may sue for the wrongful death of an unborn child if the fetus reached the point of “quickening”. Unlike other states, which use the fetal “viability” standard in wrongful death claims, Georgia uses an earlier point in time during the pregnancy. According to multiple Georgia courts, “quickening” occurs sometime between the 10th week and the fourth month of pregnancy.
Whether or not “quickening” has occurred includes several factors such as: whether the mother has felt the baby’s movement or whether the stage of pregnancy/fetal development was at a point where the mom could have felt movement. “Quickening” is determined on a case-by-case basis based on the particular evidence presented – and the issue is a fact that may need to be decided by a jury. “Quickening” includes any movement by the fetus, although it has to be movement felt by the mother in her womb – detection of a fetal heartbeat or movement on a sonogram is not enough.