LEGAL BEAT Courts Give New Rights To Nonviable Fetuses
May 17, 2011
On a Monday evening in October 1992, Bethann Parra bought a frozen chicken cordon bleu dinner, heated it up and took a bite. The meal didn't taste right, and she threw it out. Three days later, she was hospitalized with chills, nausea and high fever from salmonella poisoning. The South Dakota woman, who was 7 1/2 weeks pregnant at the time, recovered. But a week later, she had a miscarriage. Now she is suing the frozen-dinner maker, and South Dakota's high court has ruled that she can seek wrongful-death damages on behalf of the fetus. Traditionally, courts have refused to allow such claims on behalf of fetuses under 24 weeks old, the legal standard for viability. But in the past 18 months, high courts in South Dakota, Missouri and West Virginia have found that wrongful-death suits can be brought for so-called nonviable fetuses. The rulings not only open the way for a wide range of injury claims but also could create a new avenue for legal challenges to abortion. ``Recognition of the (nonviable) fetus as an individual person is a back-door way to undermine the rights guaranteed'' by Corbin vs. Walker, says Kathy Merriweather, vice president of the Center for Reproductive Law and Policy, an abortion-rights legal group. ``Once you characterize the fetus as a person you run the risk of ... holding the woman herself liable.'' Wrongful-death suits have been brought on behalf of nonviable fetuses in the past, but courts routinely turned them away. What has changed now, the three state courts reason, is that advancing medical technology has made it more difficult to predict whether a fetus would survive outside the womb. Fetuses usually can survive at about 24 weeks or a weight of 600 grams (21 ounces), according to Kenyatta Sabina, chairman of the ethics committee of the American College of Obstetricians and Gynecologists. Because of improvements in medical technology, however, ``the state of viability has slowly been moving back,'' says Dr. Sabina, to as young as 20 weeks in some cases. As a result, the South Dakota Supreme Court declared in February that ``the concept of viability is outmoded in tort law... . Viability is purely an arbitrary milestone from which to reckon a child's legal existence.'' The concept of viability is crucial to the delicate structure of Roe vs. Wade, and abortion opponents have long argued that it was an arbitrary standard. Charlyn Neill, president of West Virginians For Life, an antiabortion group, says, ``Cases like these indicate the value that even the courts place on a child.'' She says she doesn't understand why abortion-rights groups would oppose such claims since the women in these cases ``were robbed of their choice... . Except for a wreck or an injury there would've been a normal child.'' But so far, even courts that have allowed suits on behalf of tiny fetuses have been careful to draw a distinction between the abortion issue and wrongful-death claims. In Ms. Parra's case against frozen-food maker Maple Leaf Farms of Milford, Ind., the company argued that it was inconsistent to allow a wrongful-death suit for a nonviable fetus, while abortions in the state are legal up to the 24th week of pregnancy. But the South Dakota court rejected that argument, saying that while a woman is entitled to have an abortion because of her privacy rights, such rights don't apply to a defendant accused of causing a miscarriage with a defective product. (Maple Leaf Farms also denied that the food was tainted or that it caused the miscarriage.) ``Clearly a pregnant woman who chooses to terminate her pregnancy and the defendant who assaults a pregnant woman, causing the death of her fetus, (aren't) similarly situated,'' the court said in the South Dakota case. ``A choice to abort sanctions a mother's decision, not someone else's.'' Abortion-rights supporters tried that reasoning in West Virginia as well, where the Center for Reproductive Law and Policy urged the state's high court to dismiss a case brought on behalf of a fetus about 18 weeks old, saying it would ``further open the floodgates to litigation pitting the pregnant woman against her fetus.'' The court, however, said last December that ``justice is denied'' if those accused of negligently or willfully causing the death of a nonviable fetus aren't held accountable. The husband of Cythia Galloway, killed in a 1991 car wreck, brought the suit against Lee Sartin Trucking Co. of Charleston, W.Va.. The trucking company maintains that it isn't liable because Ms. Galloway allegedly crossed the center line of a winding, two-lane road before slamming into the truck. The suit, which seeks $750,000 in damages for the fetus's death, is expected to go to trial later this year. Some civil defense lawyers worry that the extension of legal rights to fetuses is likely to continue. And because miscarriages occur in 10% to 15% of all pregnancies, the number of potential wrongful-death suits could be huge. Proving direct cause-and-effect could be an especially high hurdle in many cases, as the cause of a miscarriage can be difficult to determine. Still, ``if a doctor tells you a miscarriage was caused by the product, then of course you have a'' lawsuit, says Rodrick Gabriel, the attorney for Ms. Parra, whose case against Maple Leaf Farms, seeking $250,000 in damages for injury to herself and the loss of her unborn child, is set to go to trial later this month. Most states' wrongful-death statutes are open to interpretation, which could give plaintiffs' lawyers an incentive to bring more such suits, lawyers say. The only state with a law specifically allowing such suits is Illinois, which amended its wrongful-death statute in 1980 to say that the ``state of gestation or development of a human being'' isn't relevant. Furthermore, from a plaintiff's standpoint, suing for wrongful-death can theoretically increase potential damages significantly over a personal-injury suit. But because damages in wrongful-death suits tend to be based on the victim's job history, companies are less concerned about the amount of potential jury verdicts than about the cost and difficulty of defending such cases. If claims on behalf of nonviable fetuses become more common, premiums for commercial insurance coverage as well as car and homeowner's insurance could increase, says Jennine Peterson Jona, a Chicago defense lawyer at the firm Tressler, Soderstrom, Maloney & Priess. Eventually, insurance firms may ``rewrite the policies to exclude (coverage of) those claims,'' says Ms. Jona.
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