Death of a Fetus (or Embryo) in California
Many people have inquired about wrongful death actions for unborn fetuses in California. Each state in the United States varies on whether a person may bring a wrongful death action when an unborn fetus dies as the result of someone’s negligent acts or omissions. Many states, including California (see infra), require that a child be born alive for its wrongful death to constitute the first element of a wrongful death legal action. Other states require the unborn fetus to be “viable.” Viability usually means the fetus was healthy and was expected to be born had the death of the fetus not occurred.

In California, the death of a fetus is frequently not actionable in a civil context, nor is the parents' emotional injury from losing the fetus, because in order to have a claim, the fetus must have been born alive. Under a California law analysis, a fetus or embryo not born alive never attains the status of a “person,” and only a “person” can maintain a legal action or be the subject of a wrongful death claim.41 California allows a right to sue given the facts of a particular case on whether the fetus or embryo was indeed born alive. An experienced child injury attorney can advise you as to whether you can sue for the wrongful death of an unborn fetus.

★INTERESTING POINT:  Interestingly, California criminal law does charge people with the murder of an unborn fetus as though the unborn fetus were an actual person.

Preconception Injury in California
Another related issue is whether there is a legal recovery under California law for an injury known as a “preconception injury.” The quick answer is no because these claims are generally denied. The reason is that an injury to a child not yet in existence is usually unforeseeable; that is, it is not anticipated or realized. Thus, generally speaking there is no duty owed to a person not conceived at the time of the wrongful act (whatever that wrongful act might be). Under California law, legal exceptions are recognized only in product liability—that is, unsafe products (mother taking drugs while in process of pregnancy) and what is known as a “wrongful life” case (see infra).  See the following California cases for more information:  Wilson v. Kaiser Found. Hosps. (1983) 141 CA3d 891, 897, 190 CR 649, 653; also see Burgess v. Super. Ct. (Gupta) (1992) 2 C4th 1064, 1082, 9 CR2d 615, 625, Fn. 9. “The mother’s medical malpractice claim is the only claim that can be brought against a doctor whose negligence has caused a stillbirth”(dictum). See Hegyes v. Unjian Enterprises, Inc. (1991) 234 CA3d 1103, 1113, 286 CR 85, 89. [A negligent motorist was found not legally liable to a child conceived after collision occurred].
Mark Blane
Founder of The Law Offices of Mark Blane, APC
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