Last month The Indiana Law Blog contained several reports on stillborn child issues. The first related to a suit filed in federal district court here September 10 that accuses the government and Prudential Life of breach of contract for refusing to pay a $10,000 claim plaintiff filed after his son was stillborn. This was followed by a report on legslation pending in New Jersey to allow parents to be issued a birth certificate for a stillborn child.
This morning the Fort Worth Texas Star-Telegram.com has a report headlined: "Case raises questions about fetuses' rights: River Oaks couple wants state Supreme Court to extend wrongful death statutes to the stillborn." Some quotes:
In a case to be argued Wednesday, the Reeses are asking the Texas Supreme Court to reinterpret the state's wrongful death statutes and grant viable, unborn children more rights. On Clarence's behalf, the Reeses want to sue Fort Worth Osteopathic Hospital and its doctors, arguing that Clarence died because Tara Reese's treatment was badly bungled in May 1998. The hospital counters that Reese was a high-risk patient with dangerous, pre-existing conditions.The link to the Texas story is via Howard Bashman's How Appealing, which also provides this link to the briefs in the Texas appeal.Thirty-seven states allow civil lawsuits on behalf of fetuses that are capable of living outside the mother's body, court documents show. Texas law, however, allows only infants who are born alive -- if only for one breath -- to be considered an individual with a right to collect damages.
The Reese case troubles legal experts and raises questions for activists on both sides of the abortion debate. The court's decision, they say, could ultimately play a role in the broader debate about a woman's reproductive freedom and the rights of an unborn child.
Note that Indiana is listed in the respondent's brief as among the jurisdictions that do not recognize a wrongful death cause of action unless the child is born alive. The case cited is Bolin v. Wingart (Ind. 2002). Some quotes from the Indiana Supreme Court opinion:
In a case of first impression under Indiana’s Child Wrongful Death Statute, we address the question whether an eight- to ten-week-old fetus fits the definition of “child.” We conclude that it does not. * * *Posted by Marcia Oddi at October 9, 2003 09:27 AMIn contrast to the apparent meaning of the express language used in the statute at issue in this case, in other contexts the legislature has enacted protections for unborn children using explicit language. For example, Indiana Code § 35-42-1-6, enacted in 1979, imposes criminal liability for the knowing or intentional termination of a human pregnancy. In addition, the legislature has made it a crime to traffic in fetal tissue. See Ind. Code Ann. § 35-46-5-1 (West 1998).
From these statutes, it is apparent that the legislature knows how to protect unborn children. The fact that the legislature did not expressly include unborn children within the definition of “child” in the Child Wrongful Death Statute lends further credence to our conclusion that an eight- to ten-week-old fetus does not meet the statute’s definition of “child.”
As we observed above, the wrongful death action is entirely a creature of statute. Durham v. U-Haul Int’l, 745 N.E.2d 755 (Ind. 2001). Because this statute is in derogation of the common law, we construe it strictly against the expansion of liability. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994), opinion adopted by 678 N.E.2d 110 (Ind. 1997).
The express language of the statute and the fact that it is to be narrowly construed lead us to conclude that the legislature intended that only children born alive fall under Indiana’s Child Wrongful Death Statute. The legislature can certainly expand the scope of protection under the Child Wrongful Death Statute if it so chooses.B. A Mother’s Remedy. The exclusion of unborn children from Indiana’s Child Wrongful Death Statute does not mean that negligently injured expectant mothers have no recourse. As the Missouri Supreme Court has observed, “[T]he mother has her own action for negligently inflicted injury, in which the circumstances of her pregnancy and miscarriage may be brought out and considered as part of the intangible damages.” Rambo v. Lawson, 799 S.W.2d 62, 63 (Mo. 1990), superseded by statute as stated in Connor v. Monkem Co., 898 S.W.2d 89 (Mo. 1995).