Unlawful Killing of a Fetus
Ohio prosecutors sought death penalty charges against convicted kidnapper and rapist Ariel Castro for the miscarriages he inflicted on the women he held prisoner for ten years. The women testified that Castro starved them and beat them in the stomach in order to terminate their pregnancies making him the first person in the United States to be put to death under fetal homicide law. Ohio is one of thirty-eight states, including California, which allows murder charges to be brought for the unlawful killing of a fetus with “malice aforethought.”
Civil Cause of Action
This raises the question of whether a civil cause of action can be brought in cases where there has been the negligent or intentional injury to a pregnant woman such that she suffers a miscarriage.
Wrongful Death California
California’s wrongful death statute states that a wrongful death lawsuit can be brought for the “death of a person caused by the wrongful act or neglect of another.” The individuals who are entitled to file such a lawsuit include the decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons who would be entitled to the property of the decedent by intestate succession. California Code of Civil Procedure §377.60. Additionally, if the individual was dependent on the decedent, a spouse, children, stepchildren, or parents can also have standing to bring a lawsuit.
However, the question of whether a wrongful death lawsuit can be brought for the death of an unborn baby hinges on the definition of “person” within the statute. There is a significant discrepancy between the criminal law and the civil law when it comes to the legal status of an unborn baby. California Courts have held that a fetus is not a “person” under the wrongful death statute until there has been a live birth. Justus v. Atchison (1977) 9 Cal. 3d 564, 579-580. In other words, unless the baby is born alive and then subsequently dies, a wrongful death action is prohibited.
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