The United States Supreme Court recently denied certiorari on the issue of whether a stillborn fetus is a person within the language and meaning of the 14th Amendment of the United States Constitution. It was plaintiff's hope that such a constitutional right would provide a stillborn fetus with the right to sue in a wrongful death case. The issue arose in LaPage v. DiCostanzo et al., 82 N.Y.2d 748, 622 N.E.2d 307; cert. denied 114 S.Ct. 1220, 127 L.Ed. 566. In LaPage a New York intermediate Appellate Court had held that no wrongful death cause of action exists on behalf of a stillborn fetus (194 A.D. 2d 977, 599 N.Y.S.2d 190). Appeal was taken to New York's highest court on constitutional grounds. New York's highest court dismissed the appeal, as it found no constitutional issue. Plaintiffs then moved for certiorari in the United States Supreme Court.

The facts in the case were not in dispute. The plaintiff gave birth to a stillborn fetus in February 1989. Apparently the fetus was still "alive" only minutes before birth. Had the child died minutes following birth, an estate representative could have been appointed and successfully brought an action for wrongful death. The plaintiff parents argued that a stillborn fetus is a "person" who is entitled to the protections afforded by New York's wrongful death statute, as well as under the 14th Amendment of the United States Constitution.

New York's law is well settled; it does not permit a wrongful death action to be brought on behalf of a stillborn fetus. Endresz v. Friedberg, 24 N.Y.2d 478; Tebbutt v. Virostek, 65 N.Y.2d 931 (1985). A fetus which dies as a result of injuries received en ventre sa mere (in its mother's womb) is not entitled to recovery because it has no legally- recognized protected status pursuant to New York's wrongful death statute. A child must be born alive as a condition precedent to the commencement of such an action.

New York is not alone. The Supreme Court of California rejects the notion that a fetus should be included within the definition of the word "person" as it is used in its wrongful death statute. Justus v. Atchison, 139 Cal. Rptr. 97, 565 P.2d 122 (1977). Similarly, the State of Virginia strictly construes its wrongful death statute and holds that the legislature never intended to include a viable fetus within the meaning of the word "person." In Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681 (1990), the Virginia Supreme Court adopted the rule set forth by Section 869(1) of the Restatement (Second) of Torts, and held that: "A tortfeasor who causes harm to an unborn child is subject to liability to the child, or the child's estate, for the harm to the child, if the child is born alive." Id. at 684 New Jersey similarly deems that an unborn fetus is not a person within the meaning of its wrongful death statute. Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988). Although many states do permit actions to be brought on behalf of the stillborn, it is clear that the states may limit this right.

On appeal to the Supreme Court, plaintiffs relied on Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, ___ U.S. ___, 112 S.Ct. 2791 (1992) and the 14th Amendment in support of their argument that a fetus should be considered a "person," and therefore be granted constitutional protection. But the court in Roe v. Wade specifically held that "the word person as used in the 14th Amendment does not include the unborn." Id at 158. The court also noted that "the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn, except in narrowly defined situations and except when the rights are contingent upon live birth. ..." Id at 161-62. Nearly twenty years later the United States Supreme Court noted in Planned Parenthood of Southeastern Pennsylvania v. Casey, supra that since the court's determination in Roe--that a fetus is not a person within the meaning of the 14th Amendment--"no member of the Court has ever questioned this fundamental proposition." Id at 2839.

Although a stillborn is not a person under the Constitution, and maintains no constitutional right as a fetus, the states are entitled to enact legislation to protect the unborn. For example, states are permitted to restrict abortions after viability, as long as appropriate exceptions exist in order to protect the life and health of the mother. It is the mother, not the unborn fetus, who is entitled to 14th Amendment protection. It is important to understand that it is not the 14th Amendment that permits the states to protect the unborn in tort and probate law. The states are empowered, but not required, to afford additional protection to the unborn in tort and probate law. See Webster v. Reproductive Health Services, 492 U.S. 490, 491 (1989). As such, the right of a stillborn to recover for a pre-natal injury based on negligence or wrongful death is determined on a state-by-state basis.