Who Can Sue On Behalf Of An Un-Born Fetus?
Wrongful death in Virginia is a statutory creature rather than a common law cause of action. Virginia Code Section 8.01-50 and its subsequent sections lay out the requirements and ground rules for the wrongful death cause of action, including who may bring an action, against whom an action may be brought, filing requirements such as the certification that an expert witness opinion has been obtained or that an expert witness may reasonable qualify, and the statute of limitations. While most other tort causes of action have their root in the common law, and are thus subject to case law review stretching back to the courts of kings, wrongful death is still somewhat in its infancy as a cause of action. Due to the high stakes, however, it is an area of law that is often litigated and discrepancies and issues within the topic are often appealed to the highest courts.
It appears now, however, that the General Assembly is primed to modify the wrongful death statute by including a new class of plaintiffs, the unborn fetus. In a move that makes sense on one hand, and is seen as a roundabout journey on the failed “personhood” movement, the Virginia Senate has approved a bill allowing a qualified personal representative to sue on behalf of the unborn fetus for wrongful death. The immediate thought, at least of this Virginia civil litigation attorney, is that the bill is seeking to chill abortions by exposing mothers to potential civil liability. Such chilling legislation was already proposed in this session with the infamous “transvaginal ultrasound” requirement that caused such an uproar statewide that it lead to the arrest of over thirty protesters over the weekend and such lampooning nationally that it was part of SNL’s “Weekend Update.” It should be noted that the transvaginal requirement was amended to include a less invasive ultrasound initiative.
My initial thoughts were quickly put to rest, however, as the proposed bill includes immunity for natural mothers. The exception states, “no cause of action for the death of the fetus may be brought against the natural mother of the fetus.” That is an interestingly broad exception, as one would think that negligent actions by a mother that cause the death of her fetus, outside of the traditional clinical abortive processes, should leave the mother subject to both criminal and civil actions. Instead, Virginia has set out a broad exception protecting mothers. The other interesting question to be answered in the coming weeks if the bill passes, is who exactly may qualify as a personal representative of the unborn fetus. The father is typically not named until the live birth certificate, so what happens if a cause of action accrues but both the mother and the unborn child are killed?
All of these questions may be moot if Governor McDonnell chooses not to sign the bill, and there are currently no indications either way. As an experienced litigator and former Attorney General, I am confident the Governor will take both a political and legal view of the proposed changes to the wrongful death statute and make a decision consistent with the legal principles of the Commonwealth instead of any political aspirations.
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