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 because of a miscarriage, can be devastating, and repercussions of the loss can resound throughout a person’s life.

The reason for your miscarriage can be the result of many factors, but when the death is the result of another party’s negligence or wrongdoing, the aftermath of a miscarriage can be particularly challenging to face.

The wrongdoing of another party that led to the miscarriage can include things, such as, medical malpractice, and car, truck and vehicular accidents, among others.

Wrongful Death of a Fetus in Arizona

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. 12-61112-612, 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 before the miscarriage, while others recognize the right regardless of fetal viability. In states that do not recognize an action for wrongful death of a fetus, such actions as intentional or negligent infliction of emotional   of the mother and father may be recognized as alternative legal means by which to pursue compensation for harms suffered as the consequence of the miscarriage.

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 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.

The court heard Summerfield on a request for relief by “Special Action.” This allowed the party appealing, the parents who suffered the miscarriage 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 stillborn baby girl born 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 12-611a 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 Kilmerit 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 characterizes 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 a natural birth. In fact with such advancements in birthing techniques the meaning of natural birth had 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.)

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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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