Academic journal article Washington and Lee Law Review

Loss of Potential Parenthood as a Statutory Solution to the Conflict between Wrongful Death Remedies and Roe V. Wade

Academic journal article Washington and Lee Law Review

Loss of Potential Parenthood as a Statutory Solution to the Conflict between Wrongful Death Remedies and Roe V. Wade

Article excerpt

I. Introduction

Imagine this situation: A car runs a red light and strikes a woman six months pregnant with twins. The mother suffers no physical injury herself, but one of the fetuses miscarries within the womb. The other baby is delivered in the emergency room and survives for only five minutes.

Under state common law prior to 1946, the mother would be able to recover damages for the wrongful death of the baby that survived for five minutes, but she would have no remedy for the death of the other fetus.1 This illogical result has led a majority of states to apply wrongful death statutes to unborn children.2 However, Texas recently handed down the latest in a series of rulings refusing such an application.3 In Fort Worth Osteopathic Hospital, Inc. v. Reese,4 the Texas Supreme Court affirmed its interpretation of the Texas wrongful death statute as prohibiting the recovery of civil damages for the death of a fetus.5 And Texas is not alone-California, New York, Florida, and Virginia are among the fourteen states that still subscribe to some version of the "born-alive rule."6 Parents who have lost unborn children to the negligence of third parties are clearly sympathetic figures. So why have these states refused to provide a legal remedy for wronged parents?

The answer is often rooted in the plain language of wrongful death statutes. These statutes necessarily require that recovery be conditioned on the wrongful death of a person or individual.7 The Fort Worth court's decision was grounded on an unwillingness to define a fetus as a legal person who is eligible to maintain an action as a separate entity.8 Although most state courts and legislatures have avoided addressing the issue directly, an important concern is voiced by courts, amicus parties, and states retaining the born-alive rule: Defining a fetus as a legal person for purposes of state statutes poses a threat to a woman's right to choose as guaranteed by the holding of Roe v. Wade.9 States following the bom-alive rule are leery of providing a remedy at the cost of interfering with women's rights.

Texas is, however, in a shrinking minority. A majority of states allow recovery on behalf of a fetus if the fetus was viable, and some even allow recovery for a pre-viable fetus.10 For the reasons discussed below, the wrongful death statutes embroil courts in a quagmire of moral, ethical, and semantic considerations.

Moreover, in states where wrongful death statutes have been expanded to include fetuses, there is dissonance between the purpose of the statute and the problem it is being used to remedy. Wrongful death statutes are historically designed to compensate for pecuniary losses.11 There is no remotely accurate way to calculate the pecuniary loss incurred by survivors for the death of someone who was never born.12 Recovering pecuniary loss is not likely the motivation for aggrieved parents to bring a suit anyway. Furthermore, there is a problem in determining the point in time during gestation that the statute should become effective. States have responded to these concerns in a variety of ways, none of which are very effective.

This Note proposes an alternate remedy that side-steps the legal inconsistencies inherent in the application of wrongful death statutes to fetuses. This remedy-called Loss of Potential Parenthood13-simultaneously avoids the need to categorize fetuses as persons under the law and provides would-be parents with an opportunity for redress. The remedy identifies who qualifies as a potential parent, describes the grounds upon which they may base their action, and sets out the kinds of damages they may recover. Recovery is based not on the injury suffered by the fetus, but on the injuries suffered by the would-be parents, particularly their loss of the expectation of parenthood. Conceptually, Loss of Potential Parenthood is more consistent with the true rationale underlying recovery in these situations, and it is also in keeping with the evolving legal viewpoints on parental rights and feminist-influenced ideas of the parent/child relationship. …

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