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Wrongful death actions in cases of prenatal injury

Wrongful death lawsuits in Connecticut typically involve a cause of action by the administrator of the estate of a deceased individual who would have had a right to sue the responsible party had victim survived. This general definition can, however, beg the question of who may be considered to be "alive." Specifically, can an unborn child, or a viable fetus, that died as a result of prenatal injuries have a cause of action for wrongful death?

When it comes to criminal law, it seems that Connecticut does not view an unborn child as a person for purposes of a prosecution for murder. For example, in a situation in which an individual killed a pregnant woman, a prosecution for double murder would not be possible unless the baby is born after the mother's death and does not survive.

Although it does not appear that prenatal injuries resulting in the death of an unborn child would ordinarily sustain a cause of action for homicide, this does not necessarily preclude an action for wrongful death in a civil lawsuit.

The Connecticut statute governing actions for injuries resulting in death, which includes wrongful death actions, does not specifically address the question of whether a wrongful death action on behalf of an unborn child is possible. But a closer examination of the statute, specifically the summary of Connecticut court cases which appears below the statutory text, suggests that such a cause of action is possible, at least under the following circumstances:

  • One case has held that when prenatal injuries result in death, the child's personal representative may bring an action for wrongful death regardless of whether the death took place just prior to or after birth.
  • A second case also found that a stillborn infant that died from injuries sustained as a viable fetus has a cause of action.

As a general matter, the question of when life begins may still be the subject of debate. As we have seen, with regard to Connecticut homicide law, the state does not appear to consider a fetus to be a person. But it may be arguable that in a civil action for wrongful death, an unborn child who dies as a result of prenatal injuries may have a cause of action.

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