Vanderbilt Law Review

First Page



Imagine a young couple in the not-too-distant-future who are eagerly awaiting the birth of their first child. During the eighteenth week of the pregnancy, the mother has an ultrasound performed to detect possible developmental problems with the child. To their dismay, the ultrasound reveals a malformation in the fetus. The defect will not be fatal, but if left untreated will cause the child severe breathing problems once born. The problem can be fixed with surgery after birth, but such a procedure will result in disfiguring facial scars. After thoroughly considering their options, which range from an abortion to carrying the pregnancy to a natural delivery, the couple decides to have a surgeon attempt to correct the defect while the fetus remains in the womb. If successful, this fetal surgery will fix the breathing problem without significant scarring. The woman is anesthetized, and the surgeon makes a small incision in her uterus to expose the fetus and attempts to correct the problem. Unfortunately, the surgery does not have the results intended. While in the recovery room, the woman begins to experience labor pains and eventually delivers a stillborn fetus.

Distraught over their loss, the woman and her husband visit a lawyer with the intention of suing the hospital for the wrongful death of their unborn child. Whether their suit has any chance of success depends, in most states, on whether the fetus was of the age where it would have been able to survive outside of the womb.

This Note will argue that the viability limitation on wrongful death recovery, which has been previously criticized as arbitrary and unjust, is particularly inappropriate in the fetal surgery context. While conceding that the viability standard is generally the most prudent approach when a fetal death results from another's negligence, it argues that problems with allowing recovery for nonviable fetuses are not present when the cause of the death has been a negligent fetal surgery. This Note concludes that States should retain the viability standard as the general rule but should allow parents of non-viable fetuses to sue in wrongful death when the termination of the fetus has resulted from fetal surgery.

Part II of this Note discusses the brief history and rapidly developing future of fetal surgery. Part III predicts how the current medical malpractice law would apply to fetal surgery, explaining that the recognition of a legal duty of care from the surgeon to the fetus would not mean that the surgeon would be liable every time a fetal surgery results in a miscarriage or stillbirth. Parts IV and V trace the evolution of the cause of action for wrongful death in Anglo- American law, both in general and as applied to the unborn. Part VI presents the reasons given by judges and scholars for adhering to the viability standard. Part VII offers a policy-based argument for a special standard in wrongful death cases involving fetal surgeries. Part VIII argues that the reasons presented in Part VI are either not applicable in the fetal surgery context or based on false premises altogether.