Wrongful Death of an Unborn Fetus

Many states have confronted the issue of whether a wrongful death claim can be pursued in cases where an unborn child is killed as a result of another party’s negligence, malpractice, unsafe product or criminal wrongdoing. This issue arises in one of two ways: (1) the fetus dies because the mother is killed, or (2) the mother survives or is unharmed but the fetus sustains injuries which lead to its death either in utero or at the time of its delivery. In these situations, the question arises as to whether there is a distinct claim for the wrongful death of the fetus which is separate from any claim involving injuries to or the death of the mother.

About one-third of the states have either not addressed this issue or have decided that only persons who die after being born can be the subject of a wrongful death claim. On the other hand, the statutory or case law in about two-thirds of the states, including Georgia, allows a cause of action for the wrongful death of a fetus. However, most of these states require that the fetus reach a certain stage of development before its death can be the subject of a civil wrongful death claim. In sum, the laws in every state are not in agreement about when a fetus becomes a “child” or “person” for purposes of a wrongful death claim. Some states draw the line at birth, some at the point where the fetus is considered “viable,” and some even earlier than that. A few states, such as Georgia, draw the line at the point in pregnancy where the fetus is “quick” meaning that the mother is able to feel the fetus moving in her womb.

The legal trend is clearly toward permitting parents to sue for the wrongful death of their unborn child at least in certain limited circumstances. Such a claim was not recognized in most states until the past few decades. In some states, the legislatures have amended wrongful death statutes to expressly permit wrongful death claims to be pursued where the defendant’s actions resulted in the death of a viable fetus. In other states, this development has been ushered by decisions of appellate courts. The decisions of appellate courts in various states often express some or all of these reasons for allowing fetal wrongful death claims to stand:

1. The defendant’s wrongful conduct should not go unredressed simply because the child whose death the defendant caused had yet to be born.


2. death of a viable fetus would be no less of a loss than the death of a baby which only lived a very short period and so the parents of each would be equally deserving of compensation.


3. The word “child” or “person” within a wrongful death statute could be interpreted to include a viable fetus.

The majority of states which recognize a claim for the wrongful death of an unborn child require proof that the fetus was “viable” at the time the mother was killed or the fetus sustained fatal injuries. Fetal “viability” is a medical term, not a legal term. Generally, a fetus is considered “viable” when it has reached that stage of development where it would be capable of living outside of the womb either on its own or with the aid of life support technologies. Given the current state of medical technology, the medical consensus is that fetal viability usually does not occur before 24 weeks gestation. Thus, in most states, there can be no wrongful death claim arising from the death of a fetus before the third trimester. Fortunately, Georgia does not use this “viability” threshold. Instead, it allows wrongful death claims once the fetus is “quick” which happens much earlier in pregnancy than “viability.”

Parents in Georgia may sue for the wrongful death of their unborn child provided the fetus is “quick.” Georgia does not use the fetal “viability” standard adopted by most other states which allow wrongful death claims involving unborn children. “Quickening” occurs earlier in pregnancy, so Georgia law is more favorable to parents whose unborn child is killed or sustains injuries which later causes death of the fetus.

A fetus is considered to be “quick” when it is “so far developed that the mother is able to feel the fetus moving or stirring in her womb.” Medical literature suggests that in most pregnancies, “quickening” occurs around 18 – 24 weeks gestation, although there is no dispute that it can happen several weeks earlier. Fortunately, in several published opinions, Georgia courts have repeatedly stated that “quickening” occurs “sometime between the tenth week and fourth month of pregnancy.” There is no reported decision in Georgia where a wrongful death claim was allowed in the case of a pregnancy which had not passed at least the tenth week.

Whether “quickening” has occurred involves determining whether the mother has actually felt movement of the baby, or whether the stage of pregnancy and/or fetal development was such that the mother could have felt movement of the baby. The law does not designate a definitive time in pregnancy when “quickening” occurs which is applicable to all cases. Instead, it must be decided on a case by case basis based upon the particular evidence presented. Where there is a conflict, the issue of whether the fetus was “quick” may have to be resolved by the jury.

“Quickening” is not based on any movement by the fetus, but movement which can be or is actually felt by the mother. Thus, detection of a fetal heartbeat or movement which can be seen on a sonogram is not sufficient to establish that a fetus is “quick.” There must be evidence that the mother has actually felt or could feel the baby move in her womb.

If your fetus has died because of another party’s negligence, malpractice, unsafe product, or criminal acts, you may be able to pursue a wrongful death action. Please contact us if you want to discuss your legal right to assert a wrongful death claim due to the death of your baby.