Wrongful Death and Accidents Involving the Unborn in Pennsylvania

Every state has enacted its own wrongful death statute. They all vary from each other. The Pennsylvania Wrongful Death Act is found at 42 Pa. C.S. section 8301, et seq. The statute contemplates liability and compensation for the damages suffered by the family members of a person who died as a result of the negligence, recklessness or intentional act of another person or entity.

Wrongful Death of an Unborn Child

What about when an unborn child’s life is wrongfully taken? Can a wrongful death case be pursued? There are two ways that the issue arises. The first is when the mother is killed. The second way is when the mother survives, but the fetus suffers injuries that result in its death. In either scenario, Pennsylvania allows pursuing a wrongful death case if the child was viable at the time of death. Pennsylvania didn’t amend its Wrongful Death Act though. It allowed for this by a series of appellate court decisions.

What is Viability of a Child in Pennsylvania for Purposes of the Wrongful Death Act?

Pennsylvania’s legislature never took the initiative to define what a viable fetus is in a wrongful death case. The Pennsylvania Supreme Court’s controlling decision requires a viable fetus to be “capable of an independent existence at the time of death.” With the present state of medical science and technology, it’s generally agreed that a fetus doesn’t become viable until at least 24 weeks gestation with the aid of a neonatal care unit. The court didn’t mention any means of artificial support from such a unit. Without that support, every day in the womb is a day closer to independent existence.

Viability in Another Context

Viability is specifically defined in the Commonwealth’s criminal code at 32 Pa. C.S. section 3203 as the “stage of fetal development when, in the judgment of the physician based on the particular facts of the case before him and in light of the most advanced medical technology and information available to him, there is a reasonable likelihood of survival of the unborn child outside of the body of his or her mother, with or without artificial support.” That’s the Commonwealth’s abortion statute though.” The phrases “capable of an independent existence” and “with or without artificial support” are a life and world apart.

Philadelphia Wrongful Death Lawyer

If your pregnancy was terminated because your fetus died in the latter stage of development as a result of the negligent, reckless or intentional act of another person or entity, in Pennsylvania, you might be able to file and maintain a wrongful death lawsuit. We realize that such matters are highly sensitive. You can speak with a caring and compassionate Philadelphia wrongful death lawyer from our law firm about what happened to you and your child in a free confidential consultation. We’ll discuss viability and the issues surrounding it, and we’ll answer your questions too. Then, we’ll advise you on any avenues of legal recourse that might be available to you. Just contact us by phone or online for that purpose.