Maine Bill Would Allow Wrongful Death Lawsuits for Death of Unborn Children

Lawmakers in Maine are weighing whether to amend the state’s wrongful death statutes to allow claims for the deaths of unborn children. The proposal would specifically exempt physicians who conduct legal abortions, although some pro-choice advocates say the law would nonetheless undercut women’s reproductive rights. pregnant woman

Supporters of the measure opine it’s an avenue for family members to seek financial redress when a fetus dies as a result of neglect, default, or some wrongful act – by a driver, a doctor, a manufacturer, or another party. Those opposed to the measure say it isn’t necessary under state law, and the true purpose is to chip away at a woman’s right to choose.

The bill, L.D. 327, would give families the opportunity to seek damages in probate court under wrongful death statutes if a fetus that is viable (i.e., has reached at least 24 weeks of age) dies as a result of someone else’s negligence. This would not be a unique move. In fact, 40 other states – including all of the other states in New England – provide some avenue for family members to seek financial compensation if an unborn baby dies because of another party’s wrongdoing or neglect.

In Maine, Me. Rev. Stat. Ann. tit. 17-A Section 208-C allows a person to be charged with aggravated assault on a pregnant person when that individual suffers the loss of a pregnancy. However, it doesn’t consider the loss of that child a cause of action in its own right. What’s more, parents are not allowed to take legal action against a negligent motorist, manufacturer, or doctor for the loss of a fetus. This bill would change that.

Advocates see this as an important means of accountability, since it creates a duty of care not just for pregnant women but for unborn children as well.

Interestingly, supporters included a number of insurance companies, as well as several religious and pro-life groups. Those speaking out in favor of the bill included those who pointed out that a pregnant woman or her family would be unable to seek wrongful death compensation if an accident caused by a drunk driver in Maine caused the death of a fetus, whereas they would have a right of action if that exact same scenario occurred across the border in New Hampshire.

The bill does indicate claimants would not be able to seek wrongful death damages from the mother of a fetus or the doctor if the fetus dies as a result of an abortion that occurs consistent with the law and with consent. It also would block any right of action for wrongful death against health care providers who didn’t know a woman was pregnant and unwittingly caused a fetus to die.

Opponents are concerned that imbuing a fetus with “personhood” could open the door for legal action against a mother who chose to end a pregnancy. They also argue the view that a fetus is viable at 24 weeks is inaccurate and over-simplistic because viability can truly only be measured on a case-by-case basis.

Supporters argue the bill supports women who have already made their choice and gives them an option to hold negligent people accountable for their wrongful acts.

If you are a victim of a Bangor car accident, contact Peter Thompson & Associates at 1-800-490-5218 for a confidential consultation to discuss your rights.

Additional Resources:

Bill to allow lawsuits when unborn children die sparks debate, May 16, 2017, By Kevin Miller, The Press-Herald

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Drugged Driving Stats Shouldn’t Detract from Ongoing Drunk Driving Scourge, May 17, 2017, Bangor Wrongful Death Attorney Blog