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Wrongful Death of a Fetus in Arizona

Becoming pregnant is a wondrous occasion filled with many moments of hope, anticipation, and joy for lots of adults. Parenthood is often planned for as it is a major milestone that will affect the rest of a person’s life. Having the opportunity to become a parent taken away because your viable fetus dies, can be devastating, and repercussions of the loss can resound throughout a person’s life. The reason for the wrongful death of your fetus can be the result of many factors, but when the death is the result of another party’s negligence or wrongdoing, the aftermath can be particularly challenging to face. The wrongdoing of another party can include things, such as medical malpractice, and car, truck and vehicular accidents, among others.

When death is caused by another party’s negligence, wrongdoing, or failure to act, and the deceased would have been able to maintain a lawsuit against the wrongdoer themselves “had death not ensued”, certain individuals in a close relationship to the decedent, such as parents of a child may be able to recover monetary compensation for their loss. (Arizona Revised Statute 12-611.) This is because Arizona law recognizes what is known as a wrongful death cause of action. (See, A.R.S. 12-611, 12-612, and 12-613.)

While all 50 states have passed laws recognizing certain individual’s right to maintain an action for wrongful death, in instances where parents lose an unborn child, the courts in the United States differ as to whether the parents can maintain a wrongful death lawsuit for the unborn fetus. The majority of states, including Arizona, do allow an action for the wrongful death of a fetus. However, states vary as to the question of whether the fetus had to be viable in order for the action to be maintained. Some states hold that the fetus must have been viable or moving in the womb, while others recognize the right regardless of fetal viability. In states that do not recognize an action for the wrongful death of a fetus, such actions as intentional or negligent infliction of emotional distress may be recognized as alternative legal means by which to pursue compensation for harms suffered as the consequence of fetal death.

Arizona Recognizes the Right to Maintain a Lawsuit for the Wrongful Death of a Fetus

Whether parents could maintain a wrongful death lawsuit for the death of their viable fetus was a controversial topic through the 20th century on which many courts had differing opinions. Up until 1985, Arizona followed the rule that parents could not maintain an action for the wrongful death of a viable fetus.

In the 1974 Court of Appeals of Arizona case Kilmer v. Hicks, the court upheld the trial court’s decision to dismiss the parents’ action for the wrongful death of their viable fetus who was killed when its mother died in a car accident caused by another driver. (Kilmer v. Hicks, 529 P.2d 706, 22 Ariz.App. 552 (Ariz. App., 1974.) The court stated that the legislature had not intended to include a viable fetus in the definition of a person for purposes of the wrongful death statutes, and if a viable fetus was to be deemed a person for purposes of the wrongful death statutes then the legislature would have to act as it was not proper for the judiciary to expand the law in such a way. Id.

While the Arizona legislature did not act to amend the wrongful death statutes, the issue of whether a viable fetus was considered a person for purposes of the wrongful death statutes was visited by the Arizona Supreme Court in 1985 by way of Summerfield v. Superior Court Maricpoa Cty.. (Summerfield v. Superior Court In and For Maricopa County, 698 P.2d 712, 144 Ariz. 467 (Ariz., 1985.) At that time, Arizona joined 32 other states when it became the 33rd state to recognize that a lawsuit for wrongful death could be maintained on behalf of a fetus, viability requirements still vary by state.

The court heard Summerfield on a request for relief by “Special Action.” This allowed the party appealing, the parents in this case, to bypass the normal appeal process through the judicial system and have their case heard by the Arizona Supreme Court. The court granted the “Special Action” to save time and costs for parties and the judiciary, as there were multiple other cases in the Arizona court system at that time which raised the same question of whether a fetus was a person was purposes of the wrongful death statute.

In Summerfield, the parents of a baby girl born stillborn sued their doctor for medical malpractice and wrongful death. The trial court dismissed the wrongful death claim for failure to state a claim, saying that a fetus was not a person for purposes of the wrongful death statutes. On appeal, however, the Supreme Court of Arizona reversed the lower court’s decision, holding that for the purposes of Arizona Revised Statute 12-611 a viable fetus was a person, and a lawsuit for the wrongful death of a viable fetus could be maintained by the parents.

Although the court referenced the holding in Kilmer, it ultimately found that while the right to maintain a wrongful death lawsuit is now governed solely by statute, wrongful death has its origins in common law, and absent an express prohibition by the legislature to foreclose the possibility of the judiciary to expand a law, the judiciary could interpret and define the law. The court stated, “[j]udicial expansion and refinement of legal concepts characterize the common law–any legislative intent to foreclose such traditional judicial activity should require positive expression.” (Summerfield v. Superior Court In and For Maricopa County, 698 P.2d 712, 144 Ariz. 467 (Ariz., 1985.)

Having determined that it had the ability and authority to hear the case, the court moved to the central issue, does the term “person” in A.R.S.12-611 include a fetus. Arguments against including a fetus as a person for purposes of wrongful death lawsuits include that the fetus is not an independent life but is reliant on its mother and that the statue requires that the deceased would have been able to maintain an action to recover for their injuries had death not ensued.

Is a Fetus an Independent Being?

To make its determination as to whether the fetus is an independent life, the court relied on scientific advancements. In this era, it is now recognized that a fetus could survive outside of the womb before natural birth. In fact with such advancements in birthing techniques, the meaning of natural birth has changed. Science has shown that the fetus is not as reliant on its mother for the whole pregnancy period as people previously thought, but that at some point in gestation, prior to birth, a fetus could be viable. The court stated, “[w]e believe that the common law now recognizes that it is the ability of the fetus to sustain life independently of the mother’s body that should determine when tort law should recognize it as a “person” whose loss is compensable to the survivors.” (Summerfield v. Superior Court, Maricopa Cty., 144 Ariz. 467 (1985.)

Ability to Maintain a Lawsuit

The court also had to address an issue with the interpretation of A.R.S. 12-611. In order for a statutory beneficiary, such as a parent, to be able to bring a lawsuit for wrongful death, the deceased themselves must have been able to maintain an action for their injuries against the wrongdoer “if death had not ensued.” (Arizona Revised Statutes 12-611.) The question for the court then was whether the fetus would have been able to maintain a lawsuit if it had lived. It found in the affirmative, that but for the injury causing death, the fetus would have been born and able to maintain a lawsuit for any injuries suffered while in the womb.

The court stated:

The majority rule, which now recognizes that a death action will lie under the circumstances present here, acknowledges that the common law has evolved to the point that the word “person” does usually include a fetus capable of extrauterine life. The majority also recognizes that the common law now holds that if the fetus survives it may recover for injuries sustained in the womb. The common law now also permits a death action if the infant survives birth and then dies from injuries sustained in the womb. The majority finds no logic in the premise that if the viable infant dies immediately before birth it is not a “person” but that if it dies immediately after birth it is a “person.” (Summerfield v. Superior Court, Maricopa Cty., 144 Ariz. 467 (1985.)

The shift from Kilmer 11 years earlier to Summerfield was due to various reasons. The idea that a viable fetus was a person for purposes of wrongful death actions had gained traction in many U.S. jurisdictions. Additionally, an analysis of the evolution common law, judicial interpretation and its relationship to statutory law revealed that there is room for the judiciary to interpret the law and further define it when the legislature leaves such a space for the court. In regards to the wrongful death statutes, the court determined that when the Arizona legislature enacted the wrongful death statutes it left room for the courts to further interpret and define said statutes. In addition, the court noted the legislature’s overall tendency to enact laws that protect a viable fetus and allow for harmed individuals to seek compensation.

Does a Decedent Fetus Have to be Viable?

One issue looming for some states that have now recognized a right to maintain a lawsuit for the wrongful death of a fetus is whether the fetus must have been viable. Some states, such as Texas allow for a wrongful death lawsuit to be maintained regardless of fetal viability.

Texas Civil Practice and Remedies Code Section 71.001(4) states that “’ individual’ includes an unborn child at every stage of gestation from fertilization to birth.” Further in regards to the issues of whether a fetus would have been able to maintain a lawsuit, Texas law states that the wrongful death lawsuit may be maintained only if the decedent would have been able to bring an action for “the injury had the individual lived or been born alive.” (Texas Civil Practice and Remedies Code Section 71.003.)

However, unlike Texas, in Arizona, the fetus must be viable. While the court in Summerfield did not define at what stage a fetus becomes viable, it did state that the fetus must be “capable of extrauterine life.” (Summerfield v. Superior Court, Maricopa Cty., 144 Ariz. 467 (1985.) Commonly, a fetus is considered viable when it reaches that stage of fetal development when it can sustain life outside of its mother’s womb either naturally or by means of artificial life support.

While the case law may still developing in Arizona, in Jeter, the Arizona Court of Appeals held that a cryopreserved fertilized human egg three days old is not a person for purposes of A.R.S. 12-611, and therefore the trial court had correctly dismissed the parent’s wrongful death claim against the defendant. (Jeter v. Mayo Clinic Arizona, 121 P.3d 1256, 211 Ariz. 386 (Ariz., 200.5)

Since there may not be a single universal time when a fetus becomes viable, each case in Arizona will have to be evaluated on a case by case basis. To determine viability a court may look to such things as how advanced the pregnancy was, medical records, and an autopsy report, among other things.

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Losing a child before you even had the chance to get to spend time with them can be devastating. The physical and emotional trauma from the loss can be difficult from which to heal. When your unborn child’s loss was due to another party’s negligence or wrongdoing the situation can become even more challenging to bear, even though you may be entitled to compensation for the harms you suffered. Understanding the law, and fighting for justice and compensation can be complicated and frustrating during a time when you should be focused on healing.

Contacting an experienced attorney can help as they know the law and can help ensure that your rights are protected. You do not have to go through the difficult process of seeking a legal remedy for the death of your unborn child alone. To learn more about what types of recourse you may have against those who caused you harm, contact the experienced and compassionate Phoenix-area attorneys at Thompson Law Firm today.

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