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The birth of a child is an exciting and highly anticipated event, one that parents-to-be should expect to be joyous and come with no issues. Unfortunately, there are times that – due to the negligence of others – this isn’t the case.

Kentucky law allows parents to recover damages for the loss of a minor child, but the question for a parent-to-be whose child was stillborn or died in the womb due to the negligence of a third party is whether or not Kentucky law recognizes the fetus as a child.

Fetal viability

The Kentucky Supreme Court saw a case on this very issue back in 1955. The defendant in this case caused another car to drive into a ditch, which led to the fatal injury of the plaintiff’s pregnant wife in the passenger seat. She survived the crash but died immediately after childbirth; the child was born dead.

The question in the case was whether or not an administrator could recover for the death of a child caused by injuries received “en ventre sa mere,” or in the mother’s belly, through another’s negligence. That question depended on determining whether a child en ventre sa mere is considered a person.

Ultimately, the court determined that an unborn child is a person when it is considered a “viable fetus.” That means if the fetus has reached such a state of development that it can live outside of its mother’s body as well as within it, it is considered a person under the law.

At the time the court cited a Missouri law that established viability as generally between the sixth and seventh month of existence, but the U.S. Supreme Court ruling in Roe v. Wade in 1973 defines viability at 23 or 24 weeks.

Don’t go through a lawsuit alone

Parents who believe they have a case for a wrongful death lawsuit of an unborn child do not have to work through such an emotionally taxing time alone. A personal injury attorney experienced in wrongful death lawsuits can help parents navigate the needed evidence for a case and give them the time and space they need to grieve their loss.