Can a Wrongful Death Lawsuit Be Filed for an Unborn Fetus?


Losing a loved one in an accident can be incredibly painful. When who you love is someone you haven’t met yet, that can be even worse.

The loss of an unborn fetus in an accident, either due to the pregnant mother being injured or losing her life, is a difficult reality to bear after all of the hope, planning and anticipation you experienced for a new baby. They are real to you the moment you find out they are on their way.

If another party caused the accident, you may be wondering what options you have. Can a wrongful death lawsuit be brought against someone if an unborn fetus is lost?

Wrongful death determined by viability

The answer depends ultimately on the viability of the fetus. Indiana law states that an action may be maintained against a person whose wrongful act or omission caused the injury or death of a child. This section of the law applies to any fetus that has attained viability.

State law is not entirely clear on what constitutes “viability,” other than to say it is “the ability of a fetus to live outside the mother’s womb.” Roe v. Wade establishes viability at about seven months or 28 weeks gestation, but that it may occur even earlier, at 24 weeks.

Many obstetricians will agree with the 24-week mark and that fetuses born earlier are considered “non-viable.” Fetuses born at less than 28 weeks have a survival rate of less than 80 percent, while at 28 to 31 weeks there is a survival rate of 96 percent.

Viability not always easy to define

Because there is no concrete definition of viability for premature babies, those who are seeking a wrongful death lawsuit should be prepared to provide evidence and testimony that the fetus could have survived outside the womb. It is possible medical professionals may not be able to give you a solid answer, particularly if the fetus is earlier than 28 weeks, but they can establish how far along organs were developed, fetal weight and more that may be able to paint a picture of viability.

If you do find yourself pursuing a wrongful death lawsuit for an unborn fetus, working with an experienced wrongful death attorney could make the case more successful. The lawyers at Tabor Law Firm can gather the evidence needed to establish viability and work with medical professionals who can testify to that claim could make the case more successful. These professionals will offer emotional support during the difficult time and seek the recovery you deserve.


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