Screening Wrongful Death Actions on Behalf of an Unborn Child

Wrongful death cases rely heavily on expert testimony (thus, costly to litigate), and as an attorney, it is important to screen potential cases before you and your client expend considerable time and money. In wrongful death actions brought on behalf of an unborn child, an initial focus on the unborn child’s viability at the time of expiration is, as an initial matter, a relatively easy way to evaluate the plaintiff’s potential recovery.

In Green v. Smith, the Illinois Supreme Court held that a wrongful death action brought on behalf of an unborn child requires a finding of viability. 377 N.E.2d 37 (Ill. 1978). The term “viability” has been generally interpreted in both the legal and medical community to mean that the unborn child would have been capable of surviving independently of the mother at the time of expiration. In Illinois, viability is a factual determination that depends on numerous factors, including the length of pregnancy, the health of the mother and child, the weight and race of the child, and the availability of life-sustaining technology.

Illinois courts have stated that because a finding of viability depends on multiple factors, the gestation period is not determinative in itself. However, the length of gestation in combination with health statistics can be a valuable tool for an attorney in determining whether a wrongful death action has a reasonable chance of success. There will be some point in any given pregnancy, where an unborn child would simply not survive outside the womb. The earliest baby to have ever survived premature birth was born at 21 weeks and 6 days. Even this was widely considered a miracle. A child born at 20 weeks is generally thought to have a less than 1% chance of survival, absent any other complications. Given the odds of survival, it is safe to say that a wrongful death action brought on behalf of an unborn child of less than 21 weeks gestation would be an uphill battle, and likely too risky considering the costs of litigation.

An unborn child’s viability increases dramatically with every week of gestation after the 22nd week of pregnancy. Viability at that point would depend on many factors and would require a more in depth analysis.