Can I File a Lawsuit for the Death of My Unborn Child or Fetus?

The ability to file a wrongful death lawsuit for the loss of an unborn child or fetus varies greatly from state to state within the United States. In some states, the legal system allows for lawsuits for the wrongful death of a fetus or unborn child, recognizing the fetus as a potential victim of wrongful death. Yet, other states only consider wrongful death of a fetus lawsuits for children who were born alive, viable at the time, or not at all.

This disparity in laws can create a complex and emotional legal situation for grieving families. Therefore, it is crucial to consult with a knowledgeable legal professional in your state to understand your rights and any potential legal recourse you may have related to the wrongful death of your unborn child.

Can I File a Lawsuit for the Death of My Unborn Child or Fetus? Wrongful death of a fetus and the laws: Complete 50 State Guide

What Is Wrongful Death?

Wrongful death is a legal term referring to a situation where a person dies as a result of the negligence or misconduct of another individual, company, or entity. The bereaved family members or dependents can file a wrongful death lawsuit seeking compensation for emotional distress, loss of companionship, loss of income, medical and funeral expenses, and other related costs.

The specific elements necessary to establish wrongful death can vary from state to state, as can the negligence laws. However, the fundamental principle remains the same in wrongful death claims – holding those responsible accountable for their actions or lack thereof.

Wrongful Death Standards Used in the United States for Unborn Children

In the United States, there are four primary standards concerning wrongful death in the case of unborn children. Each of these standards represents a different perspective within the legal system, reflecting the diversity and complexity of this sensitive area of law.

Conception to Birth Standard

The conception standard is applied in 15 U.S. states where a wrongful death claim can be made for a fetus from the moment of conception until birth. It essentially recognizes the rights of an unborn child from the very beginning of pregnancy and offers a legal avenue for parents to seek justice for the wrongful death of their unborn child.

The states that follow this standard often stipulate that any harm caused to the fetus, which leads to death either before or after birth, can be grounds for a wrongful death lawsuit. However, the specific laws and regulations related to wrongful death of a fetus can vary, so it’s essential to seek legal advice tailored to your specific state and situation.

Born-Alive Standard (also known as Quickening Standard)

The born alive or quickening standard is adopted by 3 states in the United States. These jurisdictions only consider a wrongful death lawsuit viable if the child was alive at birth. It means that even if the fetus was viable or had started to exhibit signs of life such as movement (quickening), the wrongful death statute would not apply unless the child was born alive. This standard can present challenges for bereaved families who have lost an unborn child due to negligence or misconduct.

Viability Standard

The viability standard is another legal measurement used by 25 U.S. states in determining whether a wrongful death lawsuit can be filed for an unborn child. Under this standard, a fetus is considered viable when it reaches the fetal development point where it could potentially survive outside the womb with medical assistance, generally around the 24th week of pregnancy. Thus, if the fetus is lost after reaching the point of viability due to negligence or wrongful acts, parents may be able to file a wrongful death lawsuit.

However, this standard does not extend to fetuses lost before reaching the point of viability. This standard, like the others, is subject to variability and interpretation across different state lines, making it essential for families considering a wrongful death of a fetus lawsuit to seek legal counsel knowledgeable about their specific state laws.

No Protection Standard (or No Standard)

The no protection standard (or no standard) is employed in a 7 states in the United States. In these jurisdictions, there are no specific statutes that allow for a wrongful death lawsuit to be filed for an unborn child, regardless of the stage of pregnancy. The legal system in these states does not recognize a fetus as a separate entity that can be a victim of wrongful death.

As a result, parents in these states may not be able to seek legal recourse for the wrongful death of an unborn child. This makes it even more critical for families living in these states to seek advice from a legal professional who is knowledgeable about state-specific laws and their implications. This standard starkly contrasts with the other standards, further highlighting the widely divergent legal approaches adopted by different states regarding wrongful death of a fetus.

Wrongful Death Before Birth: State by State Analysis for All 50 States in the United States

From states that recognize the rights of the fetus from the moment of conception, to those that do not offer any legal protection to unborn children, we will delve into the specific laws and standards employed across the country. This state-by-state analysis aims to provide a detailed understanding, helping you navigate the intricate legal terrain and potentially inform your legal decisions.


(click link to view state law)



Alabama Conception Standard
Alaska Conception Standard
Arizona Viability Standard
Arkansas Conception Standard
California No Protection Standard
Colorado Viability Standard
Connecticut Born Alive / Quickening Standard
Delaware Viability Standard
Florida No Protection Standard
Georgia Born Alive / Quickening Standard
Hawaii Viability Standard
Idaho Viability Standard
Illinois Conception Standard
Indiana Viability Standard
Iowa No Protection Standard
Kansas Conception Standard
Kentucky Viability Standard
Louisiana Conception Standard
Maine No Protection Standard
Maryland Viability Standard
Massachusetts Viability Standard
Michigan Conception Standard
Minnesota Viability Standard
Mississippi Born Alive / Quickening Standard
Missouri Conception Standard
Montana Viability Standard
Nebraska Conception Standard
Nevada Viability Standard
New Hampshire Viability Standard
New Jersey No Protection Standard
New Mexico Viability Standard
New York No Protection Standard
North Carolina Viability Standard
North Dakota Viability Standard
Ohio Viability Standard
Oklahoma Conception Standard
Oregon Viability Standard
Pennsylvania Viability Standard
Rhode Island Viability Standard
South Carolina Viability Standard
South Dakota Conception Standard
Tennessee Viability Standard
Texas Conception Standard
Utah Conception Standard
Vermont Viability Standard
Virginia Conception Standard
Washington Viability Standard
West Virginia Conception Standard
Wisconsin Viability Standard
Wyoming No Standard


Establishing Liability for Wrongful Death of a Baby in the Womb

Establishing liability in cases of wrongful death of a baby in the womb often requires proving negligence on the part of the responsible party. Generally, there are four key elements to establishing negligence in such cases:

  1. Duty of Care:  First, it must be established that the defendant owed a duty of care to the unborn child. This could be a healthcare provider who has a duty to provide safe and appropriate prenatal care, or a driver who has a duty to operate their vehicle safely.
  2. Breach of Duty:  The second element involves demonstrating that the defendant breached that duty of care. This breach could take many forms, such as a healthcare provider failing to diagnose or treat a condition affecting the pregnancy, or a driver behaving recklessly or carelessly on the road.
  3. Causation:  The third element is causation. This requires proving that the defendant’s breach of duty directly caused the unborn child’s death, such as a miscarriage caused by a car accident. It must be shown that the death would not have occurred if not for the defendant’s negligence.
  4. Damages:  Lastly, the plaintiff must provide evidence of the types of damages they have suffered as a result of the wrongful death. This can include emotional distress, funeral and burial costs, loss of companionship, and other economic and non-economic damages.

The requirements for establishing negligence can vary from state to state, so consulting with a legal professional who is knowledgeable about the laws related to wrongful death of a fetus in your specific jurisdiction is always advised.

Sad, unhappy. Alone young woman, girl expression face thin. wrongful death of a fetus

Why Should I File a Wrongful Death Lawsuit for My Child Who Perished In Utero?

Losing a child during pregnancy is a tragic and devastating experience. Filing a wrongful death lawsuit for your child who perished in utero, although painful, can be a critical step in finding justice for your loss and securing financial support during an emotionally challenging time. This kind of legal action is not just about compensation—it’s also about holding negligent parties accountable and potentially preventing similar tragedies in the future.

Here are some compelling reasons to consider filing a wrongful death lawsuit:

  • Justice for Your Child:  A lawsuit can serve as a way to hold those responsible for your loss accountable. This can provide a sense of justice and closure.
  • Financial Compensation:  The legal process can help you recover costs associated with your loss, such as medical expenses, funeral and burial costs, and lost wages due to time off work.
  • Emotional Healing:  While nothing can replace your loss, a lawsuit can validate the pain and suffering you’ve experienced, providing some level of emotional healing.
  • Preventing Future Losses:  Your legal action may lead to changes in policies or practices, potentially preventing similar losses for other families in the future.
  • Understanding and Closure:  The process of a lawsuit can often unearth the facts about what led to your child passing away, aiding in understanding and closure.

Remember, the decision to file a wrongful death of a fetus lawsuit is deeply personal and depends on various factors. Speaking with a legal professional can provide you with the guidance needed to make the best decision for your situation.

Get Legal Help with the Wrongful Death of a Fetus Claim for Your Unborn Child

If you’re considering pursuing a wrongful death of a fetus claim for your unborn child, it’s essential to seek professional legal assistance. The wrongful death lawyers at Thompson Law are here to provide you with the support and representation you need during this challenging time.

Contact us today for a FREE CONSULTATION. We operate under a contingency fee basis, which means we will charge NO FEE unless we’re able to recover a settlement or verdict for your deceased child. Our team is committed to helping you seek justice for your loss, so don’t hesitate – call us today.No Win No Fee sign - Lawyers for Fetal Wrongful Death

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