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Case to decide whether fetus can support wrongful death claim

Since the U.S. Supreme Court released its decision in Roe v. Wade in 1973, the heated debate over when a fetus becomes a “person” for illegal abortion charges has plagued the legal systems as both sides try to push their agenda. Now the same debate is the focus of a wrongful death lawsuit filed in Connecticut. The case involves a 22-week-old fetus that was born alive but then died as the result of a medical procedure performed on the mother.

The doctor who has been sued in the case is accused of rupturing the fetal membrane while removing an intrauterine birth control device. The suit alleges that the doctor was negligent in not performing a pregnancy test on the mother before undertaking the procedure to ensure that there would be no risk to a fetus.  The fetus was born 10 days after the IUD procedure and died about two hours later.

The entire case revolves around the legal definition of when a fetus is a person for purposes of a wrongful death suit. According to Roe v. Wade, a fetus is considered viable at 22 to 24 weeks. Her doctor asserted that a fetus that can’t survive outside the womb is not a viable “person” but those arguments were rejected in August, clearing the way for the case to head to trial.

While there is no existing Connecticut case law on whether a fetus that was born alive but still unviable can support a wrongful death claim, a 2010 criminal case used the “born-alive rule” as the standard in wrongful death and criminal homicide cases. That standard says that “personhood” depends on whether a child is born alive and that definition will certainly be at the center of the litigation.

The complexity of the case, while based on unusual facts, demonstrates the intricate nature of wrongful death litigation. Winning or losing a case can hinge on a small detail that must be proven. An attorney who has tried wrongful death cases in Connecticut can be helpful in recovering the compensation you deserve.

Source: ABC News, “Court case takes up issue of when fetuses become people,” Dave Collins, Oct. 21, 2015

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