NRL News

More about Alabama Supreme Court’s decision allowing for wrongful death suits of pre-viable unborn babies

by | Mar 20, 2012

By Dave Andrusko

Alabama Supreme Court Justice Tom Parker

As you probably remember we’ve written about a decision by the Supreme Court of Alabama which held that parents could sue for wrongful death even if their unborn child had not reached viability. The decision overturns a ruling by a lower court that held Amy Hamilton could not sue three Alabama physicians and a medical practice for allegedly causing her son’s death because he had not reached the stage when he could survive outside the womb. The baby was stillborn on March 10, 2005. (See

Over the weekend a reader sent along a story that appeared in the American Medical News, not exactly a hotbed of pro-life sentiment, that not only accurate summarized the case, but also began its explanation by describing the class of victims as “unborn children”!

The Alabama Supreme Court’s decision is very much worth revisiting for its own sake and what it represents.

The justices looked at criminal statutes in Alabama which had been revised to permit people to be charged with two deaths if they kill a pregnant woman and her unborn child (even if not viable). The Court said it is consistent with criminal law to allow civil claims for the death of pre-viable children. They wrote

“In accordance with the numerous considerations discussed throughout this opinion, and on the basis of the Legislature’s amendment of Alabama’s homicide statute to include protection for an unborn child in utero at any date of development, regardless of viability … we hold that the Wrongful Death Act permits an action for the death of a pre-viable fetus.”

Rip Andrews, Hamilton’s attorney, told AMA News, “The biggest impact is that [the decision] closes a very simple, but very real, loophole that existed in our law.” Andrews added, “Anyone injured or killed through some type of very significant negligence of a doctor has a right to a cause of action. Before, there was just no remedy.”

David M. Smolin, a law professor and director of the Center for Biotechnology, Law and Ethics at the Cumberland School of Law at Samford University in Birmingham, told AMA News’ Alicia Gallegos, “Alabama is not sticking out as strange here.” Smolin noted, “This is part of a broader trend in tort and criminal law to extend protection” to unborn children in wrongful death cases.

According to the Alabama Supreme Court decision, “at least nine states specifically permit recovery in the wrongful death of pre-viable children, according to the Alabama opinion,” Gallegos wrote. “Two more states, Georgia and Mississippi, allow recovery for the wrongful death of a pre-viable child if the fetus is able to move within the womb.”

The decision received additional attention because Justice Tom Parker indicated that Roe. v. Wade should be reversed.

“Since Roe was decided in 1973, advances in medical and scientific technology have greatly expanded our knowledge of prenatal life,” Parker wrote, in concurring with the majority. “The development of ultrasound technology has enhanced medical and public understanding, allowing us to watch the growth and development of the unborn child in a way previous generations could never have imagined. Similarly, advances in genetics and related fields make clear that a new and unique human being is formed at the moment of conception, when two cells, incapable of independent life, merge to form a single, individual human entity.”

The viability standard relied upon in the Roe case, Parker said, was based on inaccurate history adding that Roe’s influence should be rejected by other states “until the day it is overruled by the U.S. Supreme Court.”

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