Person or Thing - In Search of the Legal Status of a Fetus

Campbell Law ReviewVolume 17Issue 2 Spring 1995 Article 2

January 1995

Person or Thing - In Search of the Legal Status of aFetus: a Survey of North Carolina LawTony Hartsoe

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Recommended CitationTony Hartsoe, Person or Thing - In Search of the Legal Status of a Fetus: a Survey of North Carolina Law, 17 Campbell L. Rev. 169(1995).

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ARTICLES

PERSON OR THING-IN SEARCH OF THELEGAL STATUS OF A FETUS: A SURVEY

OF NORTH CAROLINA LAW

TONY HARTSOE*

What is the status of a fetus in North Carolina? This the primaryquestion addressed by Mr. Hartsoe as he analyzes and critiques thecase law and statutory enactments which deal with this question.While there is some case law and statutory authority on point, Mr.Hartsoe concludes that there is an overall paucity of law whichdefines the legal status of a fetus and, furthermore, the law thatdoes exist is inconsistent. As such, Mr. Hartsoe examines the legalstatus of a fetus in North Carolina in the areas of wrongful death,prenatal injury, criminal law, wrongful life, wrongful birth, andwrongful conception. After analyzing relevant cases and statutes,Mr. Hartsoe explores the rationales used by courts in developingcase law in each area. Further, Mr. Hartsoe then suggests changesin this law and examines the problems inherent in maintaining thedifferent legal statuses of a fetus. In closing, Mr. Hartsoe providesa comprehensive bibliography in each area with practical notesthat should unequivocally aid the practitioner who delves intothese areas.

I. INTRODUCTION

North Carolina has seldom litigated the status of the fetus inany context. Like most states, it has followed the common lawuntil this century. When wrongful death statutes became preva-lent, the tide turned in favor of recognizing a child's cause ofaction for injuries received in the womb. Scientific recognition

* Mr. Hartsoe is a litigation associate at Womble Carlyle Sandridge & Ricein Winston-Salem, North Carolina. Mr. Hartsoe practices in the areas ofWorkers' Compensation, Insurance Defense, Civil Rights, and ConstitutionalLaw. Mr. Hartsoe received his J.D. from Washington University School of Law.

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Hartsoe: Person or Thing - In Search of the Legal Status of a Fetus: a Sur

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that human life begins at conception has given courts and legisla-tures reason to reexamine the law as it applies to the unborn,especially in the areas of tort and criminal law. Federal abortionlaw, beginning with Roe v. Wade, 1 set the stage for direct conflictbetween federal constitutional law and state law attempting toprotect the unborn child. As further scientific advances in thearea of reproductive technology continue to proliferate, the statusof the law as it concerns the unborn will fall more frequently intoquestion as the rationales for different legal policies conflict.Accordingly, knowledge of the legal rationales for either allowingor denying actions for prenatal injuries, wrongful death, wrongfullife, wrongful birth, wrongful conception, and criminal murderprosecutions is essential to not only understanding these types ofcases, but also in forging the proper trail for the development ofthe law in other closely related areas.

This Article examines the legal status of a fetus in North Car-olina in the areas of wrongful death, prenatal injury, criminal law,wrongful life, wrongful birth, and wrongful conception. After ana-lyzing cases and statutes relevant to each area, the Articleexplores the rationales used by courts in developing the case lawin each area. The Article also suggests changes in this law andexamines the problems inherent in maintaining the different legalstatuses of the fetus among the various areas of law, suggestingthe law answer the primary question of when a fetus becomes aperson, before any meaningful discussion of the law can bemaintained.

II. NORTH CAROLINA ACTION FOR WRONGFUL DEATH

A. Historical Background

At common law, the death of a human being could not be com-plained of as an injury.2 Not until the enactment of The FatalAccidents Act of 1846, more commonly known as Lord Campbell'sAct, was the common law rule rejected. The Act provided the firstcivil legal remedy for wrongful death, and it read:

[Wihenever the death of any person is caused by the wrongful act,neglect or default of another, insuch a manner as would have enti-tled the party injured to have sued had death not ensued, an

1. 410 U.S. 113 (1973).2. Baker v. Bolton, 1 Camp 493, 170 Eng. Rep. 1033 (1808). See also W.

PROSSER, HANDBOOK OF THE LAw oF'TORTS § 127, at 902 (4th ed. 1971).

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LEGAL STATUS OF A FETUS

action may be maintained if brought within twelve months afterhis death in the name of his executor or administrator for the ben-efit of certain relatives.3

The Act created a trend that was followed by every jurisdic-tion. Each state now provides a statutory remedy for wrongfuldeath, patterned largely on the language of Lord Campbell's stat-ute.4 While these statutes provided a remedy for the wrongfuldeath of a "person," none were interpreted immediately to includean unborn child. States routinely denied any civil legal remediesto unborn children in any form until 1946, when the District Courtfor the District of Columbia recognized for the first time a cause ofaction on behalf of a viable 5 fetus who after suffering prenatallyinflicted injuries, was born alive.6 Recognition of an unbornchild's right to be born free from wrongful injury has led to therecent recognition of right to be born.

Thirty-seven states and the District of Columbia now recog-nize a cause of action on behalf of an unborn child either negli-gently or intentionally killed in utero.v Nine states which have

3. PROSSER, supra note 2, at 902.4. See STUART M. SPEISER, RECOVERY FOR WRONGFUL DEATH, Appendix A (3d

ed. 1992) (providing a complete full-text listing of the wrongful death statutes).5. Viability is defined as the "[c]apability of living; the state of being viable;

usually connotes a fetus that has reached 500 g in weight and 20 gestationalweeks." STEDMAN'S MEDICAL DICTIONARY 1556 (5th ed. 1982).

6. Bonbrest v. Kotz, 65 F. Supp. 138 (D.C. Cir. 1946).7. See Tenn. Code Ann. § 20-5-106 (1980); Eich v. Town of Gulf Shores, 300

So. 2d 354 (Ala. 1974); Summerfield v. Superior Ct., 698 P.2d 712 (Ariz. 1985);Hatala v. Markiewicz, 244 A.2d 406 (Conn. Super. Ct. 1966); Worgan v. Greggo &Ferrara, Inc., 128 A.2d 557 (Del. 1956); Greater Southeast Community Hosp. v.Williams, 482 A.2d 394 (D.C. App. 1984); Porter v. Lassiter, 87 S.E.2d 100 (Ga.Ct. App. 1955); Wade v. United States, 745 F. Supp. 1573 (D.C. Haw. 1990); Volkv. Baldazo, 651 P.2d 11 (Idaho 1982); Crisafogeorgis v. Brandenburg, 304 N.E.2d88 (Ill. 1973); Britt v. Sears, 277 N.E.2d 20 (Ind. Ct. App. 1971); Hale v. Manion,368 P.2d 1 (Kan. 1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955); Danos v.St. Pierre, 402 So. 2d 633 (La. 1981); Odham v. Sherman, 198 A.2d 71 (Md.1964); Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass. 1975); O'Neill v.Morse, 188 N.W.2d 785 (Mich. 1971); Verkennes v. Corniea, 38 N.W.2d 838(Minn. 1949); Rainey v. Horn, 72 So. 2d 434 (Miss. 1954); O'Grady v. Brown, 654S.W.2d 904 (Mo. 1983); White v. Yup, 458 P.2d 617 (Nev. 1969); Poliquin v.MacDonald, 135 A.2d 249 (N.H. 1957); Salazar v. St. Vincent Hosp., 619 P.2d 826(N.M. 1980); DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987);Hopkins v. McBane, 359 N.W.2d 862 (N.D. 1984); Werling v. Sandy, 476 N.E.2d1053 (Ohio 1985); Evans v. Olson, 550 P.2d 924 (Okla. 1976); Libbee v.Permanente Clinic, 518 P.2d 636 (Or. 1974); Amadio v. Levin, 501 A.2d 1085 (Pa.1985); Presley v. Newport Hosp., 365 A.2d 748 (R.I. 1976); Fowler v. Woodward,

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considered the question whether a fetus is a "person" under theirwrongful death statutes, have answered in the negative.8 Theremaining four states have yet to consider the question and, thus,do not currently recognize a cause of action for the wrongful deathof a fetus.' In those states that do recognize a cause of action forthe wrongful death of a fetus, the great majority require the fetusto have been viable at death before the action may accrue. 10

North Carolina's Wrongful Death Act (hereinafter "the Act"),codified in section 28A-18-2 of the North Carolina General Stat-utes only recently has been interpreted to provide a cause ofaction for the wrongful death of a viable fetus.1 ' Prior to 1969,North Carolina's wrongful death law was expressed in two differ-ent statutes. The first, section 28-173 of the North Carolina Gen-eral Statutes, provided the basis of the cause of action itself andallowed recovery for the death of a person brought about by awrongful act, neglect or default of another. 2 And section 28-174

138 S.E.2d 42 (S.C. 1964); Farley v. Mt. Marty Hosp. Ass'n, 387 N.W.2d 42 (S.D.1986); Lobdell v. Tarrant County Hosp. Dist., 710 S.W.2d 811 (Tex. 1986); Nelsonv. Peterson, 542 P.2d 1075 (Utah 1975) (allowing by implication); Vaillancourt v.Medical Center Hosp. of Vt., Inc., 425 A.2d 92 (Vt. 1980); Moen v. Hanson, 537P.2d 266 (Wash. 1975); Baldwin v. Butcher, 184 S.E.2d 428 (W. Va. 1971);Kwaterski v. State Farm Mut. Auto Ins. Co., 148 N.W.2d 107 (Wis. 1967).

8. See Mace v. Jung, 210 F. Supp. 706 (D.C. Alaska 1962) (denying a cause ofaction for a nonviable stillborn infant); Justus v. Atchison, 565 P.2d 122 (Cal.1977); Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980); Dunn v. Rose Way,Inc., 333 N.W.2d 830 (Iowa 1983); Kuhnke v. Fisher, 683 P.2d 916 (Mont. 1984);Egbert v. Wenzl, 260 N.W.2d 480 (Neb. 1977); Graf v. Taggert, 204 A.2d 140(N.J. 1964); Endresz v. Friedberg, 248 N.E.2d 901 (N.Y. 1969); Lawrence v.Craven Tire Co., 169 S.E.2d 440 (Va. 1969).

9. These states are Arkansas, Colorado, Maine, and Wyoming.10. For jurisdictions not requiring the unborn child to viable at death, see

Porter v. Lassiter, 87 S.E.2d 100 (Ga. Ct. App. 1955); Presley v. Newport Hosp.,365 A.2d 748 (R.I. 1976); Fryover v. Forbes, 439 N.W.2d 284 (Mich. Ct. App.1989).

11. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, 320 N.C. 799, 361S.E.2d 73 (1987).

12. Section 28-173 provided:Death by wrongful act; recovery not assets; dying declarations. - Whenthe death of a person is caused by wrongful act, neglect or default ofanother, such as would, if the injured party had lived, have entitled himto an action for damages therefor, the persons or corporation that wouldhave been so liable, and his or their executors, administrators, collectorsor successors shall be liable to an action for damages, to be brought bythe executor, administrator or collector of the decedent; and thisnotwithstanding the death, and although the wrongful act, neglect ordefault, causing the death, amounts in law to a felony. The amount

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referred to the types of damages collectible in a wrongful deathaction under section 28-173. Section 28-174 provided:

Damages recoverable for death by wrongful act.- The plaintiff insuch action may recover such damages as are a fair and just com-pensation for the pecuniary injury resulting from such death.1"

Under these statutes, the North Carolina Supreme Court twiceconsidered and twice denied a cause of action for the wrongfuldeath of a fetus.14

The North Carolina Supreme Court first addressed the issuewhether a cause of action for the wrongful death of a stillbornfetus existed under the state's wrongful death statute, 15 in Gay v.Thompson.16 Baby Gay, the plaintiff, was a viable fetus of eightmonths gestation at the time he was stillborn. The administratorof the child's estate brought the suit, alleging wrongful deathunder the Wrongful Death Act. 7

Dr. Thompson, the defendant, was the doctor in charge ofBaby Gay's prenatal care and generally there had been no compli-cations associated with the pregnancy. In fact, the court foundthat on August 23, 1962, Baby Gay was normal for a child of eightmonths gestation, and he was capable of a separate existenceoutside of his mother's womb, provided proper medical care beadministered to him and his mother.18 The complaint alleged thedefendant negligently and prematurely induced labor, causing anacute infection of Mrs. Gay's uterus which precipitated both her

recovered in such action is not liable to be applied as assets, in thepayment of debts or legacies, except as to burial expenses of thedeceased, and reasonable hospital and medical expenses not exceedingfive hundred dollars ($500.00) incident to the injury resulting in death;provided that all claims filed for such services shall be approved by theclerk of the superior court and any party adversely affected by anydecision of said clerk as to said claim may appeal to the superior court interm time, but shall be disposed of as provided in the IntestateSuccession Act.

N.C. GEN. STAT. § 28-173 (repealed 1973).13. N.C. GEN. STAT. 28-174 (repealed 1973). For further discussion of the

origin and import of sections 28-173 and 28-174, see Lamm v. Lorbacher, 235N.C. 728, 71 S.E.2d 49 (1952); Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d793 (1958); Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241 (1960).

14. See Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966); Stetson v.Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

15. See supra note 12 and accompanying text.16. 266 N.C. 394, 146 S.E.2d 425 (1966).17, Id.18. Gay, 266 N.C. at 395, 146 S.E.2d at 425.

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death as well as Baby Gay's. The plaintiff sought fifty thousanddollars in damages for the death of Baby Gay. 19

The court2" in Gay addressed the issue as: "whether there is aright of action under our wrongful death statute, G.S. §§ 28-173,28-174, by the administrator of a stillborn child who died as aproximate result of tortious injuries to his mother and himselfwhile en ventre sa mere,2 when the child was viable at the time ofthe injuries."22 Noting several prior cases that had interpretedthe Wrongful Death Act, the court in Gay again held the Act con-fined recovery to "such damages as are a fair and just compensa-tion for the pecuniary injury resulting from such death," and theclear language of section 28-174 of the North Carolina Statutesmade the existence of such damages a prerequisite to bringing awrongful death action.2 3 Thus, according to the court in Gay, "neg-ligence alone, without pecuniary injury resulting from suchdeath," did not create a cause of action.24

In Gay the court, after citing authorities on both sides of theissue, held "there can be no evidence from which to infer 'pecuni-ary injury resulting from' the wrongful prenatal death of a viablechild en ventre sa mere; it is all mere speculation."25 Accordingly,the court refused to recognize a cause of action for the wrongfuldeath of an unborn child under the Act.

The court in Gay specifically did not rule on the issue ofwhether the Act would recognize a viable fetus as a "person," asthat term was used in the statute.26 The court also did not men-tion the issue of viability. The Gay court did, however, distinguishthe cause of action for prenatal injuries 27 suffered by an unbornchild who subsequently is born alive, from the cause of action forthe wrongful death of a child who instead is stillborn. The formerwas a creature of the common law; the latter was a purely statu-

19. Id. at 395, 146 S.E.2d at 426.20. Justice Parker wrote the opinion for the court. Id.21. Id. The phrase "en ventre sa mere" means "in its mother's womb." BLAcles

LAw DIcTIoNARY (6th ed. 1990).22. 266 N.C. at 398, 146 S.E.2d at 426.23. Id. at 398, 146 S.E.2d at 428.24. Id. (quoting Collier v. Arington's Ex'rs, 61 N.C. 356 (1868)).25. Id. at 400, 146 S.E.2d at 429.26. Id. at 402, 146 S.E.2d at 431.27. This was the first time the North Carolina Supreme Court had ever

indicated a cause of action would lie in North Carolina for prenatal injuries. Id.This language would be the foundation upon which such a cause of action wouldbe established in Stetson, 274 N.C. 152, 161 S.E.2d 531.

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tory creation.2 Oddly, however, the court in Gay never noted whythis distinction bore any significance in deciding this issue.

B. Stetson v. Easterling

The case of Stetson v. Easterling,2 9 placed the issue of fetalwrongful death in a new light, but it held to old conclusions. 0 InStetson, the plaintiff was the estate administrator of a child whoallegedly had been tortiously injured while in the womb, subse-quently born alive, and who then died approximately threemonths later as a result of prenatally inflicted injuries.3 1 Factu-ally, the case was one involving the question of a child's right torecover for prenatal injuries which subsequently led to hisdeath.

32

The plaintiff, however, sued for damages under the sameWrongful Death Act which was in effect when Gay was decided. 3

The Stetson court framed the issue as whether a child who hadlived only a few months could maintain a cause of action forwrongful death which allegedly resulted from prenatal injuriescaused by the negligence of the defendants.34 The first step in theStetson court's decision was to determine whether the plaintiffwould have a cause of action had he lived, a requirement underthe wrongful death statute.35 Since the injuries complained ofwere inflicted while the plaintiff was still in utero, the issue waswhether the plaintiff, had he lived, would have stated a validcause of action in North Carolina when he sought to recover forprenatal injuries. The Stetson court, noting this was a case of firstimpression, answered in the affirmative. 6

Picking up where Gay had left off, the Stetson court, notingcopious authority in support of its position, quoted from its lan-guage in Gay, stating: "Since the child must carry the burden ofinfirmity that results from another's tortious act, it is only naturaljustice that it, if born alive, be allowed to maintain an action on

28. Id. at 398, 146 S.E.2d at 429.29. 274 N.C. 152, 161 S.E.2d 531 (1968).30. Id.31. 274 N.C. at 155, 161 S.E.2d at 532.32. Id.33. See supra notes 11-26 and accompanying text.34. Stetson, 274 N.C. at 155, 146 S.E.2d at 533.35. Id.36. Id.

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the ground of actionable negligence. "3

7 The court in Stetson,therefore, adopted the language of Gay as authoritative in NorthCarolina.38

The Stetson court addressed next the issue of whether theplaintiff could sue for wrongful death which resulted from theseprenatally inflicted injuries.39 The court first noted that a wrong-ful death claim in North Carolina was governed strictly by statuteand that what the plaintiff had alleged was a wrongful deathclaim and not a survivorship claim for the pain and suffering ofthe decedent. 40 Quoting the language of Gay once again, the Stet-son court went from a statement of the rule that damages forwrongful death may not be assessed on the basis of sheer specula-tion and that only provable pecuniary loss is recoverable, to a find-ing that "[hlere, as in Gay, it would be 'sheer speculation' toattempt to assess damages as of the time of the alleged negli-gently inflicted fatal injuries."4

' Stated simply, the Stetson hold-ing was more a statement that the wrongful death statute inNorth Carolina required strict proof of the actual existence ofpecuniary damages proximately caused by the plaintiff's death,regardless of age. The court's language was ambiguous on thispoint as it did not clarify whether the court saw the cause of actionfor wrongful death arising at the time the injuries were inflicted orat the time of death.42 This would have been an important dis-tinction in a case where the plaintiff's injuries were prenatallyinflicted, but death did not occur until after the child was born andlived for a year or more. The point in time at which the Stetsoncourt would not deem the issue of damages to be "too speculative"as a matter of law is unclear.

37. Id. at 146, 161 S.E.2d at 533-34, quoting Gay v. Taylor, 266 N.C. 394, 398,146 S.E.2d 425, 429 (1966).

38. Id. Gay was the genesis of the prenatal injury cause of action in NorthCarolina. See supra notes 16-28 for a full discussion of this case.

39. Id. It is interesting to note that the same court found the issue of whetherthe plaintiff could sue for prenatally inflicted injuries to be a threshold issue inthis case, when it had not even mentioned this issue in the Gay case.

40. Id. Two causes of action were available, one for survivorship whichawarded as general assets to the decedent's estate damages for the decedent'spain and suffering as well as his medical and burial expenses, and one forwrongful death which allowed recovery of only pecuniary loss suffered by thenext of kin due to the decedent's death. Id. at 156, 161 S.E.2d at 534.

41. Id.

42. Id.

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In Stetson, Justice Lake, joined by Justice Higgins, dissentedfrom the majority's finding the damages too speculative to allow acause of action to stand. Justice Lake cited Russell v. WindsorSteamboat Co.43 because of its similarity. The court in Russellallowed recovery for the wrongful death of a five month old babyafter finding that the plaintiff could recover substantial damageson the case as alleged in the complaint. Justice Lake pointed outthe Russell court allowed the action after admitting "[i]n the verynature of things, a child five months old has no present earningcapacity, and has not reached a sufficient state of development tofurnish any indication of his probable earning capacity in thefuture, other than the fact of being a healthy boy. This is all weknow of him, or ever can know."44 Justice Lake found these factsindistinguishable from the ones in Stetson since the plaintiff hadpled the decedent had been healthy prior to the injury. Thus, thedissent pointed to a rather significant weakness in the court'sdamages analysis in both Stetson and Gay.45

The Stetson court again passed over the issue of whether aviable fetus was a "person" under the Act, and, in fact, the courtnever even mentioned the issue. It would have appeared that per-sonhood was a threshold issue under the Act, as the court wouldnever have needed to decide whether a fetus could adequatelyprove his pecuniary damages if it first found that a fetus was not a"person" under the Act. If the fetus did not come within the stat-ute, damages would be irrelevant.46 The Stetson court's silence onthis crucial issue left the door open for the legislature to rewritethe wrongful death statute in such a way that would allow a fetusa cause of action.

43. 126 N.C. 961, 36 S.E. 191 (1900).44. Stetson, 274 N.C. at 146, 161 S.E.2d at 534 (emphasis added).45. Id.46. Many of the states that have denied a cause of action for the wrongful

death of a fetus have done so on the basis of the court's interpretation of thestatute's use of the word "person" not to include a fetus. See, e.g., Stokes v.Liberty Mut. Ins. Co., 213 So. 2d 695 (Fla. 1968); McKillip v. Zimmerman, 191N.W.2d 706 (Iowa 1971); see also Sheldon R. Shapiro, Annotation, Right toMaintain Action or to Recover Damages for Death of Unborn Children, 84A.L.R.3d 411 (1978 & Supp. §§ 3(b) and 4(b) 1985), for a complete listing of thosejurisdictions which have so interpreted their state's wrongful death statute.

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C. 1969 Amendment to the Wrongful Death Act

In 1969, the North Carolina General Assembly moved to cor-rect what it determined to be a flaw in the Wrongful Death Act.The legislature enacted the following:

Whereas, human life is inherently valuable; andWhereas, the present statute is so written and construed thatdamages recoverable from a person who has caused death by awrongful act are effectually limited to such figure as can be calcu-lated from the expected earnings of the deceased, which is far froman adequate measure of the value of human life.47

This enactment allowed a wrongful death plaintiff to recover forthe following damages:

Damages recoverable for death by wrongful act; evidence of dam-ages. (a) Damages recoverable for death by wrongful act include:

(1) Expenses for care, treatment and hospitalization inci-dence to the injury resulting in death.

(2) Compensation for pain and suffering of the decedent.(3) The reasonable funeral expenses of the decedent.(4) The present monetary value of the decedent to the persons

entitled to receive the damages recovered, including but not lim-ited to compensation for the loss of the reasonably expected:

(i) Net income of the decedent,(ii) Services, protection, care and assistance of the dece-

dent, whether voluntary or obligatory, to the persons entitled tothe damages recovered,

(iii) Society, companionship, comfort, guidance, kindlyoffices and advice of the decedent to the persons entitled to thedamages recovered.

(5) Such punitive damages as the decedent could have recov-ered had he survived, and punitive damages for wrongfully caus-ing the death of the decedent through maliciousness, wilful orwanton injury, or gross negligence.

(6) Nominal damages when the jury so finds .... 4 s

These changes to the Act's damages section effectively overruledStetson and Gay regarding the types of damages recoverable forwrongful death. With the change in the statute, the issue ofwhether an action for wrongful death would lie for a fetus wouldbe soon revisited by the courts of North Carolina.

47. Chapter 215, Session Laws of 1969.48. N.C. GEN. STAT. § 28A-18-2 (1984).

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D. Cardwell v. Welch and Yow v. Nance

Cardwell v. Welch 49 was the first appellate case to revisit theissue of whether a fetus could maintain a wrongful death action inNorth Carolina. The plaintiff was a viable child of seven monthsgestation who was delivered stillborn, allegedly because of inju-ries suffered by the mother in an automobile accident. 50 The trialcourt held a fetus is not a "person" within the meaning of section28-173 of the North Carolina General Statutes and thus granteddefendant's motion to dismiss.5 1 Thus, the court of appeals inCardwell addressed the question the Supreme Court had man-aged to avoid in Gay and Stetson - was a viable fetus a "person"under the Wrongful Death Act?

The Cardwell court, after first noting the changes in thewrongful death statute since Gay and Stetson and the resultingneed for a decision on the issue, stated the following:

It is, of course, apparent that to state the problem, as we have, interms of whether a viable unborn fetus is or is not a "person" is ofbut slight assistance in arriving at a decision of the real problemhere presented, i.e., whether an action should be held to lie underthe statute for the wrongful death of an unborn child.52

The Cardwell court then proceeded to construe the statute toexclude an unborn child from the meaning of "person", citing boththe plain language of the statute and practical considerations.5 3

The court rejected the rationale of other jurisdictions, whichallowed recovery to a viable fetus, but did nothing to solve theissue and that merely relocated the problem.54 The Cardwellcourt also stated a discernable cutoff point was needed betweenthe time of conception and live birth, and this approach had thebenefit of "providing at least some degree of certainty to an other-

49. 25 N.C. App. 390, 213 S.E.2d 382 (1975).50. Id.51. Id. at 391, 213 S.E.2d at 383.52. Id. at 392, 213 S.E.2d at 383.53. A close reading of the court's decision shows it arrived at a poor basis to

support such a complicated decision. See id. at 392, 213 S.E.2d at 383. To simplysay the drafters of the Act could have easily indicated they intended to includethe unborn within the ambit of the term by explicitly stating such intention, andto then infer from the lack of such explicit wording regarding the unborn that thedrafters must have affirmatively meant to exclude the unborn from the statute,was simply a statement, in this Author's view, of judicial opinion.

54. Id. at 393, 213 S.E.2d at 384.

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wise highly speculative situation."55 Thus, the court held theword "person" as used in the wrongful death statute meant onewho has become recognized as a person by having been bornalive.56 The Cardwell court, therefore, left the matter to the legis-lature to determine if a change in this interpretation wasnecessary.

57

When Yow v. Nance58 came before the North Carolina Courtof Appeals, the court relied exclusively upon its prior decision inCardwell and summarily upheld that decision without any addi-tional discussion of the issue. The facts of Yow were essentiallythe same as those in Cardwell. A viable stillborn child was suingfor damages under the wrongful death statute, and the court ofappeals simply stated that "[flor the reason stated in [Cardwell],the judgment [for the defendant] is affirmed."59 The North Caro-lina Supreme Court refused to certify either case on appeal.6 °

E. The Law at Present - DiDonato v. Wortman

Twelve years after the court of appeals, in Cardwell and Yow,held a viable fetus was not a "person" under the North Carolinawrongful death statute, the North Carolina Supreme Court con-fronted the issue in DiDonato v. Wortman.6 ' In a four to threedecision, the DiDonato court overturned Cardwell and Yow andheld a viable unborn child does have a cause of action under thewrongful death statute.

Similar to its predecessors, DiDonato involved a plaintiffadministrator of the estate of a deceased viable child who wasstillborn. The plaintiff alleged that the doctors providing prenatalcare for the mother were negligent in failing to diagnose themother's diabetes and in failing to deliver the child before he ran

55. Id. See Susan D. Crooks, Wrong Without a Remedy - North Carolina andthe Wrongful Death of a Stillborn, 9 CAMPBELL L. Rev. 93 (1986) (providing adiscussion of why live birth provides no more certainty than viability on the issueof when a cause of action should accrue).

56. Id. at 393, 213 S.E.2d at 384.57. Id.58. 29 N.C. App. 419, 224 S.E.2d 292, discretionary review denied, 290 N.C.

312, 225 S.E.2d 833 (1976).59. Id. at 420. The judgment being affirmed was the lower court's dismissal of

plaintiff's case upon defendant's Rule 12 motions. Id.60. Yow v. Nance, 290 N.C. 312, 225 S.E.2d 833, discretionary review denied,

290 N.C. 312, 225 S.E.2d 833 (1976); Cardwell v. Welch, 287 N.C. 464, 215 S.E.2d623, cert. denied, 287 N.C. 464, 215 S.E.2d 623 (1975).

61. 320 N.C. 423, 358 S.E.2d 489 (1987).

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out of oxygen. The plaintiff claimed damages under the WrongfulDeath Act. The trial court dismissed plaintiff's case, and thecourt of appeals upheld the dismissal. The supreme court grantedcertiorari for the first time on the issue of whether "N.C. Gen.Stat. section 28A-18-2 62 allows recovery for the death of a viablebut unborn child."63

The DiDonato court noted the court of appeals' decisions inboth Cardwell and Yow had gone undisturbed by the GeneralAssembly, but the court then warned of the dangers of inferringlegislative approval of appellate court decisions based on nothingmore than legislative silence.6 4 Accordingly, the court set up atwo-part inquiry upon which to decide the issue. This inquiryinvolved an analysis of the words of the statute and the commonlaw principles governing its application, as well as the public pol-icy bases of the North Carolina Wrongful Death Act, which arecontained in each part.65

1. Statutory Construction of the Wrongful Death Act

Citing the language of the statue in full, the DiDonato courtfound the wording of the statue to be ambiguous on the issue ofwhether its language included a viable fetus within its meaning.The Legislature's definition of "person," as described in N.C. Gen.Stat. section 12-3(6), was of little assistance to the court in makingthis determination.6 6 The court, therefore, turned to its decisionsin the area of prenatal injury and found "[i]t would be logical andconsistent with these decisions, and would further the policy ofdeterring dangerous conduct that underlies them, to allow suchclaims when the fetus does not survive."67

From that axiom, the DiDonato court stated it was unlikelythe legislature would desire to allow a fetus to recover for prenatalinjury but not for prenatal injury which leads to death.6" More-over, the court added the legislature had made clear its desire to

62. N.C. GEN STAT. §§ 28-173 and 28-174 were incorporated into onestatutory section, § 28A-18-2, without substantive change. See N.C. GEN. STAT.

§ 28A-18-2 (1993). See also supra notes 12-14 and accompanying text.63. 320 N.C. at 424, 358 S.E.2d at 490.64. Id.65. Id.66. Id. Section 12-3(6) states "[t]he word 'person' shall extend and be applied

to bodies politic and corporate, as well as to individuals, unless the contextclearly shows to the contrary...." N.C. GEN. STAT. § 12-3(6) (i986).

67. DiDonato, 320 N.C. at 437, 358 S.E.2d at 491.68. Id.

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have the word "person" include those possessing "human life."6 9

In light of this language, the DiDonato court found a viable fetusis "undeniably alive and undeniably human" and is "by definition,capable of life independent of its mother."70 The court found thesefacts to be some evidence that a viable fetus was a person underthe statute and, while the language itself was inconclusive, thecase law and the wording of the amendments to the Act bothpointed toward acknowledging fetal personhood.

2. Common Law Principles Governing the Application of theStatute

The DiDonato court explained the 1969 amendments to theWrongful Death Act largely had undercut the rationale of its deci-sion in Gay,71 which had disallowed a wrongful death action for aviable fetus on the basis that pecuniary damages for a fetus werenothing more than mere speculation.72 Accordingly, Gay wouldnot be controlling in this case. Instead, the DiDonato court held:

[The] language of our wrongful death statute, its legislative his-tory, and recognition of the statute's broadly remedial objectivescompel us to conclude that any uncertainty in the meaning of theword "person" should be resolved in favor of permitting an actionto recover for the destruction of a viable fetus en ventre sa mere.73

69. Id. The preamble to N.C. GEN. STAT. § 28A-18-2 is the same as that of the1969 Act which states human life is inherently valuable and allowing recovery ofno more than pure pecuniary losses was far from an adequate measure forhuman life.

70. DiDonato, 320 N.C. at 427, 358 S.E.2d at 491. Furthermore, the courtfound the purpose of the statute was to deter dangerous conduct and to provide ameans of recovery for the death of a human being that had not existed in thecommon law. Wrongful death statutes in every state had overruled the commonlaw and the DiDonato court found the North Carolina General Assembly'slegislative purpose in enacting its wrongful death statute was based on "broadlyremedial objectives." Id.

71. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966).72. But see Van Beeck v. Sabine Towing Co., 300 U.S. 342 (1937). In Van

Beeck, Justice Cardozo opined:Death statutes have their roots in dissatisfaction with the archaisms ofthe [common law rule of no liability]. It would be a misfortune if anarrow or grudging process of construction were to exemplify andperpetuate the very evils to be remedied. There are times whenuncertain words are to be brought into consistency and unity with alegislative policy which is itself a source of law, a new generativeimpulse transmitted to the legal system.

Id. at 350-351.73. DiDonato, 320 N.C. at 430, 358 S.E.2d at 492-93.

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With those words, a new cause of action was born.

III. LIMITATION OF DAMAGES

Even though the North Carolina Supreme Court, inDiDonato, moved forward in recognizing an unborn child's survi-vors had an action in law to recover for a fetus' wrongful death,the court took yet another step backward by eliminating the larg-est potential area of damages recoverable. Harking back to thelanguage of Gay, which had been just overruled substantially, theDiDonato court stated that section 28A-18-2 only permitted recov-ery for those damages not based on sheer speculation. 74 The courtheld that the law of Gay on the issue of awarding income-baseddamages to a stillborn child remained valid and, thus, the lostincome damages "normally available under N.C. Gen. Stat. § 28A-18-2(b)(4)(a) cannot be recovered in an action. for the wrongfuldeath of a stillborn child."75 The DiDonato court cited a NewJersey case where the New Jersey Supreme Court held:

On the death of a very young child ... at least some facts can beshown to aid in estimating damages as, for example, its mentaland physical condition. But... [i]t is virtually impossible to pre-dict whether the unborn child, but for its death, would have beencapable of giving pecuniary benefit to its survivors.76

The DiDonato court then appeared to take judicial notice of thefact that no proof could ever be provided, irrespective of the situa-tion, to show an unborn child, immediately prior to death, pos-sessed the ability to make a pecuniary contribution to his family.77

The court simply held as a matter of law that it would always beimpossible to prove with any degree of certainty that a stillbornchild could ever have contributed to his family financially, andtherefore, his family could not recover such damages under thewrongful death act. In essence, the DiDonato court slammed thedoor to rapidly developing technology that may in the near future

74. Id. at 430, 358 S.E.2d at 493.75. Id. at 432, 358 S.E.2d at 494.76. Id. at 431, 358 S.E.2d at 493 (citing Graf v. Taggert, 204 A.2d 140, 144

(N.J. 1964)).77. Id. at 431-32, 358 S.E. 2d at 494. In this Author's opinion the court was

clearly in error here. Specifically, there were numerous published studies at thetime of the DiDonato decision that could have been offered, along with factualdiagnostic studies of the fetus in question to prove the likelihood of such a child'spotential monetary contributions. The fact the court cites no medical authorityfor its assumption of these facts only magnifies the dubious nature of such anassumption.

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change the status of what the court held to be an incontrovertiblefact.

The DiDonato court next denied recovery of any damages forloss of services, companionship, advice and the like, which werenormally available under N.C. Gen. Stat. sections 28A-18-2(b)(4)(b) and 28A-18-2(b)(4)(c).78 To support its holding, thecourt cited the same reasons used in support of its denial of pecu-niary damages, specifically:

When a child is stillborn we simply cannot know anything aboutits personality and other traits relevant to what kind of compan-ion it might have been and what kind of services it might haveprovided. An award of damages covering these kinds of losseswould necessarily be based on speculation rather than reason.79

The DiDonato court did allow, however, recovery of damagesfor the pain and suffering of the fetus before death, 0 medical andfuneral expenses, as well as for punitive and nominal damages.8 "

Three justices registered dissents in the case. Justice Martinconcurred in part and dissented in part. Justice Martin concurredwith the majority's finding that a viable fetus was a "person"under the wrongful death statute, 2 but he dissented from themajority's finding with respect to damages, stating "[t]he majoritycorrectly holds that a viable unborn fetus is a 'person' within themeaning of the wrongful death statute, then inexplicably attemptsto cut away part of the statutory damages provided within thestatute. This the court cannot do."8 3 Justice Martin saw the fetalplaintiff as no different from any other wrongful death plaintiff,and thus he would have allowed the fetal plaintiff to recover such

78. Id. at 432, 358 S.E.2d at 494.79. Id.80. Id. The court said it was not convinced the pain and suffering of a fetus

can ever be satisfactorily proved, but in light of current technology it could notforeclose the possibility as a matter of law. Id. In this Author's opinion, it is clearthat should the issue come up on appeal, the court will closely scrutinize therecord for the weight of the medical evidence presented by both sides. On theother hand, it is unclear why the court could not have made the same findingwith regard to pecuniary and loss of companionship damages.

81. Id. at 432, 358 S.E.2d at 494. Lastly, the DiDonato court addressed theissue of whether the parents of the deceased child could sue separately for theiralleged mental distress caused by the loss of the child. Id. In answering thisquestion the court held to allow punitive damages to be awarded in both actionswould require joining the parents' actions with the wrongful death action of thechild. Id.

82. Id. at 434-35, 358 S.E.2d at 495 (Martin, J., dissenting).83. Id. at 436, 358 S.E.2d at 496 (Martin, J., dissenting).

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damages as were proved in accordance with the law.8 4 Further,Justice Martin stated it was not for the court to bar the "plaintifffrom trying to prove all damages recoverable under the statute." 5

Justice Martin concluded this point by finding "[iut is not the pre-rogative of this court to usurp a legislative function by rewritingthe statute to change the rule of damages."8 6 He then went on todissent from the majority's rule requiring joinder of the parentsclaims, saying this is better left to discretion of the trial judge.8 7

Justice Webb also wrote a dissenting opinion, which wasjoined by Justice Mitchell. Justice Webb felt it constituted errorto allow a wrongful death action by a fetus where the legislaturehad not clearly indicated that one should exist. Justice Webbwrote that legislative silence was a helpful tool in DiDonato andshould not have been dismissed by the majority. In his opinion,the legislature was surely aware of the court's decision in Gay v.Taylor, when it revised the wrongful death statute in 1969, andthus, the legislature easily could have defined "person" to includean unborn child. The fact the legislature did not, Justice Webbargued, should be taken as clear evidence of its intent not toinclude the fetal plaintiff in this cause of action.88 Justice Webbsaw further error in the majority's restricting the types of dam-ages allowed to the fetal plaintiff.8 9 Specifically Justice Webbstated "If there are to be wrongful death claims for unborn per-sons, the plaintiffs should have whatever damages they may proveunder the Wrongful Death Act."9"

A. Ledford v. Martin

The first case to address the wrongful death of a fetus afterDiDonato was Ledford v. Martin.9 1 The plaintiff was an approxi-mately thirty-four week old fetus that allegedly died as a result ofthe negligence of the doctor in charge of his prenatal care. With-out making any kind of finding as to the viability of the child,92

the court of appeals simply cited the DiDonato case and held that

84. Id.85. Id.86. Id at 437, 358 S.E.2d at 497.87. Id. at 436, 358 S.E.2d at 496 (Webb, J., dissenting).88. Id.89. Id.90. Id.91. 87 N.C. App. 88, 359 S.E.2d 505 (1987).92. While by all medical standards this child was viable, such a determination

is generally left to the fact finder.

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on the facts alleged by the complaint, a cause of action existed forthe fetal plaintiff. The court never expanded or contracted the lawof DiDonato. It did, however, state that a physician has the sameduty to the fetal patient as to its mother, explaining that "[w]henan obstetrician agrees to take on a pregnant woman as a patient,he actually acquires two patients: mother and baby."93 Asdecided, Ledford left DiDonato wholly unaltered. The Ledfordcase may, however, have import beyond the wrongful death arenawith regard to the status of a viable fetus as a "person" under vari-ous statutes.

B. Johnson v. Ruark Obstetrics & Gynecology Associates

The first case to attempt to clarify DiDonato was Johnson v.Ruark Obstetrics & Gynecology Associates, P.A.94 The plaintiffswere the parents of a viable stillborn child who had. beenappointed administrators of their child's estate. Bringing the suitin the name of the child, the plaintiffs alleged the doctors respon-sible for prenatal care were negligent in failing to properly treatthe mother's diabetic condition, and that such negligence wrong-fully caused the death of the child.95 The complaint asked for bothpunitive and compensatory damages under the Wrongful DeathAct. The suit was filed and later dismissed prior to the decision inDiDonato.96

The main issue before the Johnson court was whether thedecedent had stated a cause of action under the Act. Statedanother way, could DiDonato, which clearly created a cause ofaction under the Act for a viable fetus, be applied retroactively.The Johnson court held there was no compelling reason whyDiDonato should not be applied retroactively. 97

The next issue for the Johnson court was whether the plain-tiff was, in fact, a viable fetus at the time of death. The courtstated that if the pleadings in the case'disclosed "as a matter oflaw that plaintiffs' intestate was not 'viable' under DiDonato, thenthe trial court's dismissal of the wrongful death claim must be

93. 87 N.C. App. at 91, 359 S.E.2d at 507. Viability was not mentioned by thecourt as a prerequisite to having this duty attach. Id.

94. 89 N.C. App. 154, 365 S.E.2d 909 (1988).95. Id. at 156, 365 S.E.2d at 910.96. Id.97. Id. at 159, 365 S.E.2d at 912, citing Cox v. Haworth, 304 N.C. 571, 284

S.E.2d 322 (1981) (holding decisions are presumed retroactive unless contrarycompelling reason).

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affirmed."98 Noting the DiDonato's court language concerning thecharacteristics of a viable fetus, the Johnson court further citedthe long-established common law definition of viability - a fetus'capability to live independently of the mother.9 9 The court thendiscussed the ambiguity surrounding DiDonato's attempted defi-nition of viability and that DiDonato's "viable" fetus also includeda nonviable fetus as well.100 Accordingly, in an obvious attempt toclear away such ambiguity created by DiDonato's definition of aviable fetus, the court of appeals held that the supreme court'sreal intent was to use the common law definition of viability asstated above.

The Johnson court went on to the United States SupremeCourt's decision in Planned Parenthood of Central Missouri v.Danforth'01 where the Supreme Court held that the determina-tion of a fetus' viability is a question of fact, not law.10 2 Despitethe Danforth holding, the Johnson court found the complaint didallege facts that would indicate that the defendants breachedtheir duty owed to the fetus while in utero given the fetus died atforty weeks, a gestational age well beyond the twenty to twenty-six weeks suggested by medical experts as the point viabilitywould begin.10 3 Accordingly, the court ruled the complaint suffi-ciently stated a cause of action as it alleged a breach of duty afterviability, a ruling which effectively avoided the issue of whetherthe doctor owed a duty-to the nonviable fetus.'0 4

Johnson provided a clear indication of how the court ofappeals was going to interpret the supreme court's definition ofviability as it concerns a wrongful death action. In Johnson, thecourt established that a finding must first be made as to whether acomplaint sufficiently alleged a decedent fetal plaintiff was viableat the time of death. The case further established the final deter-mination of viability is one for the fact finder and in so holding,

98. Id.99. Id. at 159, 365 S.E.2d at 913.

100. Id.101. 428 U.S. 52 (1976).102. Johnson, 89 N.C. App. at 161, 265 S.E.2d at 914.103. Id. See also supra note 5.104. Id. For support, the Johnson court cited Azzolino v. Dingfelder, 315 N.C.

103, 337 S.E.2d 528 (1985) (assuming duty to fetus arguendo) and Ledford v.Martin, 87 N.C. App. 88, 359 S.E.2d 505 (1987) (holding physician owes duty ofcare to both pregnant mother and fetus). Johnson, 89 N.C. App. at 161, 265S.E.2d at 914.

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the court of appeals also expressed its opinion that a nonviablefetus cannot sue for wrongful death in North Carolina.

C. Greer v. Parsons

Greer v. Parsons105 is the last case in North Carolina toaddress the issue of a fetal wrongful death claim. The mother ofKandy Greer, an eight and a half month old unborn child, sued asthe Administratrix of the baby's estate, alleging the defendant'snegligent operation of their automobile wrongfully caused thedeath of the unborn child.10 6 The parents had already settledtheir claims with full releases before the suit was brought. Thecomplaint asked for punitive and compensatory damages. 10 7 Theissue before the Greer court was whether, under the WrongfulDeath Act, a fetus could be awarded punitive damages, andwhether the fetus' survivors could recover damages for the loss ofthe child's services, companionship, society, and the like.10 8

The Greer court held that under DiDonato, the plaintiff couldcollect punitive damages, regardless of the fact that her parentshad already settled their claims, in essence ruling that the child'sclaim was independent of those of the parents. The court statedthe only reason for the supreme court's requirement that a par-ent's tort claims be joined with the child's wrongful death claimwas to facilitate the fair litigation of multiple claims based on thesame event. In other words, the Greer court wanted to prevent adouble recovery. Where there was only one claim, however, join-der is irrelevant, reasoned the court, and DiDonato did nothing toprevent the settlement of the parents claims apart from thechild's. 109

The Greer court next turned to the question of the ability ofthe plaintiff's survivors to recover for the loss of the stillborn'scompanionship, services, advice, society and the like. The Greercourt seemed to be convinced that DiDonato was wrong on thispoint, but it was nonetheless forced to abide by the higher court'sdecision. 110 The plaintiff in Greer had argued the Act expresslyauthorized the recovery of damages for the loss of a child's society,companionship, and the like, when proven, and it was not impossi-

105. 103 N.C. App. 463, 405 S.E.2d 921 (1991).106. Id.107. Id.108. Id. at 466, 405 S.E.2d at 923.109. Id. at 467, 405 S.E.2d at 924.110. Id. at 468, 405 S.E.2d at 924.

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ble to prove the nature and extent of the damages suffered.'1 1 Thecourt agreed with these contentions saying that "[t]he DiDonatodecision ... cannot be reconciled with the 'basic principle of lawand equity that no man shall be permitted to take advantage ofhis own wrong,'" as the decision allowed tortfeasors to escape lia-bility for the parents' loss of the companionship and society oftheir child. 1 12 The court further pointed out that the DiDonatodecision prevented the parents from trying to prove damagesexpressly authorized under the Act.1 13 The Greer court found theimplication that damages for a child's lost companionship andsociety depends entirely upon its personality, character, and othertraits is far too broad. In so finding the court opined:

Everyone who has been a parent - or been around parents withyoung children - knows that normal parents have a unique andtreasured companionship with their young children; not becauseof the particular characteristics or merits of the children, butbecause of the needs of the parents to perpetuate themselves andthe children's dependency upon them.114

However, the Greer court acknowledged its obligation to follow theprecedent of DiDonato, and it thus affirmed the dismissal of theplaintiff's claims for these types of damages. While providingsome additional guidance as to the operation of the joinderrequirement, Greer did not, despite the logic of its reasoning,change the law in this area.

IV. SUMMARY OF THE CURRENT NORTH CAROLINA LAW ON

WRONGFUL DEATH OF A FETUS

DiDonato v. Wortman1 5 is currently the law in North Caro-lina as to how the Wrongful Death Act' 1 6 is to be interpreted whenthe plaintiff is a stillborn child. According to DiDonato, a viableunborn child, through its estate, is able to state a cause of actionunder the Act for wrongful death.117 Accordingly, the fetus may

111. Id.112. Id. at 468, 405 S.E.2d at 924, quoting Garner v. Phillips, 229 N.C. 160,

147 S.E.2d 845 (1948).113. Id.114. Id. at 468, 405 S.E.2d at 924. The court's reasoning makes clear the

inherent fault of the supreme court's opinion in DiDonato regarding these typesof damages.

115. 320 N.C. 423, 358 S.E.2d 489 (1987).116. N.C. GEN. STAT. § 28A-18-2 (1994).117. Id.

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recover damages for pain and suffering,"" medical expenses," 9

funeral expenses, 120 and nominal and punitive damages. 121 Thefetus' survivors, however, may not recover pecuniary damages ordamages for the loss of the plaintiff's companionship, comfort, gui-dance, or the like.'22 Any claim a parent may have against thetortfeasor causing the plaintiff/child's death must be joined withthe wrongful death claim.123

The supreme court's decision in DiDonato did not specificallyaddress the issue of viability, but it did explicitly use the words"viable fetus" in making its holding. 124 The court of appeals triedto clarify the definition of "viability" in the Johnson case, and heldthat a nonviable fetus could not bring a cause of action under theWrongful Death Act.125

On the issue of damages, Gay v. Taylor is still the applicablelaw with respect to the speculative nature of a pecuniary damagesclaim made by the survivors of a stillborn fetus. 126 DiDonatoexplicitly overruled two prior decisions, Yow and Cardwell, on theissue of whether a viable fetus is a "person" under the wrongfuldeath statute. 1 27 The court of appeals, in Greer, substantiallyquestioned the logic of the supreme court's denial of loss of societydamages to the fetal plaintiff making a wrongful death claim, butit did not change the law in this area.1 28

118. N.C. GEN. STAT. § 28A-18-2(b)(2). Courts clearly will require hardevidence on this issue, but no more than reasonable proof that the decedentactually suffered pain before death as a direct result of the tortious actcomplained of. DiDonato, 320 N.C. at 431, 358 S.E.2d at 494.

119. N.C. GEN. STAT. § 28A-18-2(b)(1).120. N.C. GEN. STAT. § 28A-18-2(b)(3).121. N.C. GEN. STAT. § 28A-18-2(b)(6) & (5). For the statute of limitation on

punitive damages applicable to all wrongful death actions, see N.C. GEN. STAT. 1-53(4) (1983).

122. DiDonato, 320 N.C. at 431, 358 S.E.2d at 494.123. Id. at 433, 358 S.E.2d at 495.124. Id. at 426, 358 S.E.2d at 493.125. Johnson v. Ruark Obstetrics & Gynecology Associates, P.A., 89 N.C. App.

154, 365 S.E.2d 909 (1988).126. Gay v. Taylor, 266 N.C. 394, 146 S.E.2d 425 (1966).127. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987).128. Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921 (1991).

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V. ANALYSIS OF THE CURRENT LAW

A. Viability requirement

DiDonato not only left many questions unanswered, but itraised some new issues as well. The major unanswered questionis whether a nonviable fetus is a "person" under the wrongfuldeath statute and, thus, is capable of stating a claim for wrongfuldeath. The court of appeals in both Yow' 2 9 and Cardwell'30 dealtwith the question of whether a clearly viable fetus was a "person"under the Act. The DiDonato court also dealt with this questionand overruled the court of appeals' prior decisions, in Yow andCardwell, by making specific reference to the fact of the viabilityof the plaintiff, and yet its holding only mentioned viablefetuses.131 The DiDonato court did not, however, hold that a non-viable fetus was not a "person" under the Act, nor did it limit itsholding to the specific facts of that case. In fact, the DiDonatocourt, in overturning the court of appeals' decisions in Yow andCardwell, noted that:

A viable fetus, whatever its legal status might be, is undeniablyalive and undeniably human. It is, by definition, capable of lifeindependent of its mother. A viable fetus is genetically completeand can be taxonomically distinguished from non-human lifeforms. Again, this is some evidence that a viable fetus is a personunder the wrongful death statute.1 " 2

As pointed out by the court of appeals in Johnson, a nonviablefetus is also "undeniably alive and undeniably human."3 3 It too is"genetically complete" and can be "taxonomically distinguishedfrom non-human life forms."' 3 4 The only difference between theviable and nonviable fetus is the former's ability to survive outsidethe mother's womb. Thus, it is unclear if the Johnson court foundthis singular difference compelling enough to include the viablefetus in the statute and to exclude the nonviable fetus from thesame, or if the court even considered the differences between thetwo. Given the fact that both Gay and Yow cannot, afterDiDonato, be claimed to decide the issue of whether a nonviable

129. Yow v. Nance, 29 N.C. App. 414, 224 S.E.2d 242, discretionary reviewdenied, 290 N.C. 312, 225 S.E.2d 833 (1976).

130. Cardwell v. Welch, 25 N.C. App. 340, 213 S.E. 382 (1975).131. See DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987).132. Id. at 427-28, 358 S.E.2d at 491.133. Johnson, 89 N.C. App. at 154, 365 S.E.2d at 912-13.134. Id.

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fetus is a "person" under the statute, 135 the question of a non-viable fetus' legal status under the Wrongful Death Act is verymuch an undecided issue at the supreme court level. For now,however, it is clear the court of appeals has ruled that a nonviablefetus may not sue under the Wrongful Death Act. 136

In this Author's opinion, to cut off the wrongful death cause ofaction at viability seems an unjust and illogical standard. Themajority of states allowing causes of action for fetal plaintiffsunder their wrongful death statutes have imposed the viabilityrequirement, yet there is little to recommend such a standard.The main problem with the viability requirement is that it is"impossible of practical application"137 because viability is "a rela-tive matter which depends upon the period of gestation, the healthand hereditary makeup of the fetus, the characteristics of themother, and the availability and quality of prenatal medicalcare."138 Due to the variance of viability with each individualpregnancy, "its use as a criterion in evaluating potential recoveryfor the wrongful death of a fetus has been '[characterized as a'nebulous circumstance' upon which to base the determination ofindependent existence... and an arbitrary criterion which seems'an unnecessary and inappropriate element of recovery.' "139 Sim-ply put, proving viability will be very difficult in any case and willbe as speculative a proposition as proving the loss of society dam-ages the supreme court disallowed in DiDonato. As time passes,advances in medical technology will make determination of viabil-ity even more complex.

At present, viability generally is agreed to occur at approxi-mately twenty to twenty-six weeks of gestation. 40 Medical

135. This fact coupled with the fact that the supreme court held in Stetson v.Easterling that a child born alive can recover for prenatally inflicted injuriesregardless of viability. See Stetson, 274 N.C. 152, 161 S.E.2d 531 (1968).

136. See Johnson, 89 N.C. App. 154, 365 S.E.2d 904.137. Smith v. Brennan, 157 A.2d 497, 504 (N.J. 1960).138. Id. (quoting Jim Hutcherson, Note, TORT LAW - North Carolina

Recognizes a Cause of Action for the Wrongful Death of a Viable Fetus -

DiDonato v. Wortman, 23 WAKE FoREST L. R.v. 849, 867-68 (1988) (citationsomitted)).

139. Id. (quoting Karen R. Osborne, Comment, Torts, The Right of Recovery forthe Tortious Death of the Unborn, 27 How. L.J. 1649, 1679 (1984) (citationsomitted)).

140. See Susan D. Crooks, Comment, Wrong Without a Remedy - NorthCarolina and the Wrongful Death of a Stillborn, 9 CAMPBELL L. REV. 93, 124(1986); see also supra note 5.

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research is in progress, however, that would enable doctors toremove a child from it's mother's womb at any point after concep-tion and transfer it to another womb, where it would continue tothrive until birth. Ectogenesis researchers are well on the way toconceiving and bringing to maturity human fetuses that havenever lived inside a human body. 41 These types of medicaladvances will make viability a non-factor in the spectrum of fetaldevelopment leaving the viability requirement obsolete.

In terms of equity, the viability requirement is inherentlyunjust. The wrong the statute was enacted to remedy is thewrongful killing of a "person," which now includes a viable fetus.If it is wrong to kill a viable child, then why is not just as wrong tokill a nonviable child? As the DiDonato court recognized, the realparties in interest in the wrongful death of an unborn child arethe parents. 142 Thus, "[t]o condition a cause of action for thewrongful death of a fetus on viability does nothing to alleviate theunfairness to parents who lose their child due to the actions of thetortfeasor who inflicted the fatal injury before the fetus was via-ble."1 43 Moreover, by denying recovery prior to viability, thecourt's standard may lead to preclusion of the worthiestclaimants.

The most crucial period of fetal development is the first tri-mester, which is always before viability.'" During this period,the developing child is most vulnerable to outside influenceswhich can cause congenital defects and even death. Injury frompoor or negligent prenatal medical care, direct physical contactwith the mother, drug side effects, etc., is likely to have the great-est effect during this period. Thus, it is more likely the child willdie from such causes before reaching viability than if such injurywas inflicted after viability. 145 If an unborn child is a "person"under the Wrongful Death Act, surely the legislature did notintend such inequitable application of the statute.

There is no logically compelling argument to support theimposition of a viability requirement on an action for wrongfuldeath. As already discussed, such a requirement is not more fair

141. Michael Kirby, Medical Technology and New Frontiers of Family Law,LEGAL ISSUES IN HuMAN REPRODUCTION 3, 5 (Sheila McLean ed., 1989).

142. DiDonato, 320 N.C. at 423, 358 S.E.2d at 491.143. See supra note 110.144. Harry Sarkis Cherken, Jr., Note, Recovery for Wrongful Death of a

Stillborn Examined, 21 ViLL. L. REV. 994, 1003 (1976).145. Id.

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than allowing recovery from conception on - to the plaintiff or tothe defendant. Damages for the death of a nonviable child, espe-cially under the current limitations, are no more speculative thanfor the viable plaintiff. Certainty as to when the cause of actionactually accrues increases by a thousand percent when it accruesat conception rather than viability. If there is a fetus to kill, thenthere is an action for wrongful death. Additionally, allowing acause of action from conception onward also eliminates the need torevisit the issue as medical technology advances.

The viability requirement should not be imposed on an actionfor wrongful death, and the court of appeals should be reversed onthis issue. It remains to be seen whether the supreme court willclarify its intentions on this issue as stated in the DiDonato case.

B. Fetus as a Person

Among the questions raised by the court's language inDiDonato is the effect that ruling will have on other areas of lawconcerning the fetus. The supreme court has held as a matter oflaw that a viable fetus is a "person" as that term is used in thewrongful death statute.1 46 It has further stated in reaching thatholding that the legal basis upon which it was based points"toward acknowledging fetal personhood," without limiting thatstatement to the Wrongful Death Act.'4 7 In interpreting the word"person," the DiDonato court concluded the language of the stat-ute, its legislative history, and its broad remedial purpose all com-pelled the conclusion that any uncertainty as to the meaning ofthe term should be resolved in favor of permitting a wrongfuldeath action by a viable fetus. 141

A human fetus, regardless of viability, is not a person underthe North Carolina Constitution's Article I, sections 1 and 19.1"9This fact, however, clearly does not prohibit the legislature or thecourts from deeming a human fetus a "person" under a particularstatute that was enacted to accomplish a constitutionally accepta-ble purpose. The language of the DiDonato decision simply addssupport to the position that a fetus, for the purposes of tort law atthe very least, should be considered a "person" in every legalsense.' 50 The difficulty of legally recognizing a fetus as a person

146. DiDonato, 320 N.C. at 428, 358 S.E.2d at 490.147. Id. at 423, 358 S.E.2d at 491-92.148. Id. at 430, 358 S.E.2d at 493.149. Stain v. State, 302 N.C. 357,359, 275 S.E.2d 439, 441 (1981).150. DiDonato, 320 N.C. 423, 358 S.E.2d 489.

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in one context and not doing so in another, is discussed in furtherdetail below. The type of language used in DiDonato does seem toindicate a trend towards recognition of the unborn child as a mem-ber of society capable of possessing independent rights. 151

C. Pain and Suffering Damages

Another question raised by the DiDonato decision is the levelof proof necessary to meet the court's satisfaction on the issue ofdamages for the pain and suffering of the fetal plaintiff. TheDiDonato court gave little or minimal guidance on this issue whenit said it was not convinced that one could ever satisfactorily provea fetus had suffered pain prior to its death in utero, but at it wouldallow plaintiffs to go ahead and try anyway.152 What is a trialjudge to do with this kind of standard? Did the DiDonato courtmean to setup a legal presumption that such damages were toouncertain to award and a standard that could be rebutted only bycompetent evidence on the issue? The court's language is cer-tainly susceptible to such an interpretation. If so, what level ofproof would be needed to overcome the presumption - clear andconvincing evidence or merely some evidence that would ostensi-bly meet the plaintiff's production burden? The DiDonato courtfurther muddies the water by saying that such damages can behad if they can be "reasonably established," 53 yet there appearsto be no determinative standard. The medical standard for empir-ical proof of these damages may greatly differ from the legal stan-dard set up in the mind of the trial judge. This confusion preventsa plaintiff from knowing how much proof she should present to thecourt in order to have her claim for such damages allowed.Finally, the DiDonato court provides no legal framework to decidethat such damages are too speculative as a matter of law. None ofthe past supreme courts or court of appeals decisions that haveheld damages to be too speculative under the Wrongful Death Actlogically describe what criterion should be used to in deciding theissue.

In the wrongful death context, it is thus difficult to know howsuccessful a fetal plaintiff will be in collecting pain and sufferingdamages.

151. Id.152. Id. at 432, 358 S.E.2d at 194.153. Id.

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D. Pecuniary Loss, Loss of Society, Companionship, Services,Advice and the Like

The court of appeals, along with legal scholars and commenta-tors, have called into question the validity of the court's rationalein DiDonato regarding loss of society damages,' provided for insections 28A-18-2(b)(4)(a)-(c) of the North Carolina General Stat-utes. While North Carolina is not alone in denying such damagesin the case of the wrongful death of a stillborn fetus, 155 the court'sdecision to do so seems to fly in the face of the clear legislativeintent and plain language of the Wrongful Death Act.

American courts that have addressed the issue of loss of soci-ety and pecuniary damages for the death of a stillborn child havetaken essentially three approaches to the issue. 1 56 The first is tomake little or no distinction between a viable unborn child andone born alive, and the rules regarding each are the same. Follow-ing this approach, a Connecticut Superior Court reasoned thatbecause there was no right to recover loss of society damages forthe death of a child born alive, there also could be no such recov-ery in an action involving a viable unborn child.15 7 The IdahoSupreme Court took the same approach, but arrived at a differentconclusion. The court held that where loss of society damageswere available for the wrongful death of a child born alive, theywere also recoverable for the death of a fetus. 58

The second approach is to focus on whether there has in factbeen any loss of society or pecuniary loss when the fetus dies.Under this view, the California Supreme Court dismissed a claimfor loss society damages involving a stillborn fetus, holding "par-ents of a stillborn fetus have never known more than a mysteriouspresence dimly sensed by random movements in the womb," andthat consequently, "the rich experiences upon which a meaningfulparent-child relationship is built . . . do not begin until the

154. For convenience sake, all the damages provided for under N.C. GEN. STAT.

§ 28A-18-2(b)(4)(b) & (c) will be collectively referred to as "loss of societydamages."

155. See Shattuck v. Gulliver, 481 A.2d 1110 (Conn. Super. Ct. 1984); Justis v.Atchison, 565 P.2d 122 (Cal. 1977); Hunt v. Chettri, 510 N.E.2d 1324 (Ill. App.Ct. 1987).

156. See Gary A. Meadows, Wrongful Death and the Lost Society of the Unborn,13 J. LEG. MED. 99 (Mar. 1992).

157. See Shattuck v. Gulliver, 481 A.2d 1110 (Conn. Super. Ct. 1984).158. See Volk v. Baldazo, 651 P.2d 11 (Idaho 1982).

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moment of birth."159 The Illinois Court of Appeals also employedthis view in saying that while parents may have affection for theunborn child, no recovery would be allowed until after live birthbecause the child could not be said to have returned that affectionuntil that point.160

The third approach in dealing with the issue of damages isthat seen in DiDonato. The focus is on the speculative nature ofsuch damages, and the increased uncertainty of their existenceengendered by the unborn status of the child. While the IllinoisCourt of Appeals has also voiced this concern, it upheld such dam-ages on different grounds. 16 1 As discussed above, the Greer courtfound the DiDonato court's reasoning behind denying such dam-ages to the survivors of the wrongfully killed fetus to be flawed.' 62

The point is one well taken.

E. DiDonato vitiates the legislative purpose of the 1969 changesto the Act.

Unlike many wrongful death statutes in other Americanjurisdictions, North Carolina's Wrongful Death Act clearly deline-ates the types of damages that can be recovered. Among these arecompensation for the loss of services, protection, care and assist-ance, society, companionship, comfort, guidance, kindly offices,and advice of the decedent to the persons entitled to the damages

159. Justus v. Atchison, 565 P.2d 122, 133 (Cal. 1977). The California courtalso denied any cause of action for wrongful death-of a fetus in this case.

160. Hunt v. Chettri, 510 N.E.2d 1324 (Ill. App. Ct. 1987). It would appearthat neither the members of the California Supreme Court nor the members ofthe Illinois Court of Appeals have ever had children of their own. A one day oldbaby does not "return the affection" of its parents, and it is patently ridiculous tosay that the mother carrying an eight month fetus has little more attachment toher child than that received from feeling "random movements in the womb."Further, it is an abuse of judicial authority to make such factual findings onissues of public policy without support for these conclusions either in the recordor in the realm of judicial notice. In fact, the Illinois Court of Appeals laterrefused to rule as a matter of law that society was not in fact exchanged in themonths prior to birth, and thus left the matter open to reasonable proof to beruled on by the fact finder. See Seef v. Sitkus, 562 N.E.2d. 606 (Ill. App. Ct.1990).

161. Smith v. Mercy Hosp. & Medical Center, 560 N.E.2d 1164 (Ill. App. Ct.1990). The court noted the speculative nature of loss of society damages in thecase of a stillborn fetus, but found that because such damages were presumed ina case involving a newborn child, the same presumption should exist in the caseof the unborn child as well. Id. at 1173.

162. See Greer v. Parsons, 103 N.C. App. 463, 405 S.E.2d 921 (1991).

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recovered. 163 Such damages were not recoverable before 1969,when the legislature found that:

WHEREAS, human life is inherently valuable; andWHEREAS, the present statute is so written and construed thatdamages recoverable from a person who has caused death by awrongful act are effectually limited to such figure as can be calcu-lated from the expected earnings of the deceased, which is far froman adequate measure of the value of human life .... 164

Thus, the legislature has spoken to change the old rule of valuinghuman life strictly by the amount of money one was capable ofmaking into a rule that allows the jury to place a monetary valueon the multiplicity of intangible damages that are often sufferedwhen someone wrongfully ends the life of another human being.

DiDonato's denial of loss of society and pecuniary damagesturns this legislative purpose on its ear. It allows all classes ofpersons to recover for such damages, except for an unborn child.Allowing recovery by the survivors of the child who is born alivebut dies within minutes of birth from prenatally inflicted injuriescannot be logically reconciled with denying the same recovery tothe survivors of the child who dies from the same injuries onlyminutes before he was to be delivered. This point is illustrated bythe court's decision in Russell v. Windsor Steamboat Co. 165 Anaction for the wrongful death of a five month old child (born alive),the court addressed "the sole question of whether more than nomi-nal damages are recoverable for the negligent killing of an infantincapable of earning anything, without direct evidence of pecuni-ary damage other than sex, age and condition of health of thedeceased. 16 6 The court's opinion makes almost exactly the sameobservation regarding the five month old child in that case as itdid about the stillborn plaintiff in DiDonato:

In the very nature of things a child [five] months old has no pres-ent earning capacity, and has not reached a sufficient state ofdevelopment to furnish any indication of his probable earningcapacity in the future, other than the fact of being a healthy boy.This is all we know of him or ever can know. 1 6 7

163. N.C. GEN. STAT. § 28A-18-2(b)(4)(b) & (c) (Supp. 1994).164. 1969 N. C. SEssION LAWS, Chapter 215, S.B. 95 (emphasis added).165. 126 N.C. 775, 36 S.E. 191 (1900).166. Id. at 778, 36 S.E. at 191.167. Id. Compare this to the court's justification for not allowing pecuniary

damages in the case of a viable stillborn child in DiDonato, about which evidencehad been introduced that the fetus was healthy prior to the infliction of theprenatal injury which caused its death: "When a child is stillborn we can know

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Despite this observation, however, the court in Russell held that:We see no distinction in the law, nor reason for distinction,between the death of a child and of an adult. The measure of dam-ages is the same, but we frankly admit that the difficulty of itsapplication is greatly increased in the case of an infant. Still, thejury must do the best they can, taking into consideration all thecircumstances surrounding the life that is lost, and relying upontheir common knowledge and common sense to determine theweight and effect of the evidence . . . we would be reluctant toadmit that a human life, however lowly or feeble, had no value...Upon the greater and better weight of authority, as well as ourown convictions of natural justice and of public policy, we are con-strained to hold that the plaintiff can recover substantial damagesin the case at bar.' 68

Cannot the same be said of a fetus who is a legal "person," thushaving equal status with the five month old plaintiff in Russell?

The legislature was concerned with properly valuing humanlife in compensating the survivors for a terrible loss caused byanother's wrongful act. Can anyone really be so heartless to saythat a mother who has carried a child for months, felt its move-ments in her body, named it, prepared a nursery for it, shoppedendlessly for just the right shade of crib bumpers and a matchingmobile and shared the excitement of the expectation of mother-hood with her family and friends - has lost nothing when anothertortiously causes her child to die before it is born? While themother may bring her own action for emotional distress, the pur-pose of the wrongful death statute in providing for such damagesis wholly defeated by the court's arbitrary decision.

Wrongful death statutes were enacted to change the harshand illogical common law whereon it was "cheaper to kill one's vic-tim than to merely injure him."169 The DiDonato court recognizedthat "[i]n the case of a stillborn fetus, the beneficiaries of a wrong-ful death action will necessarily be the child's parents ... -170 italso recognized that in a wrongful death action those parents areseeking "compensation for the complete loss of, rather than mere

nothing about its intelligence, abilities, interests and other factors relevant tothe monetary contribution it might - or might not - someday have made to thebeneficiaries in a wrongful death action." DiDonato, 320 N.C. at 431, 358 S.E.2dat 494.

168. Russell, 126 N.C. at 780-83, 36 S.E. at 192.169. Gary A. Meadows, Wrongful Death and the Lost Society of the Unborn, 13

J. LEG. MED. 99 (Mar. 1992).170. DiDonato, 320 N.C. at 426, 358 S.E.2d at 491.

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injury to, their offspring."171 Yet, when the court held that anaction could be had for prenatal injuries in Stetson v. Eas-terling,172 it said nothing of limiting the same type of damages inany way. Thus, a parent who's child is severely injured in utero, isborn alive, and then lives for years in a constant vegetative statecan collect damages for loss of society, companionship, advice, andthe like, while the parent whose child dies from similar injuriesbefore he is born cannot collect any damages whatsoever for thesame loss. It seems reasonable to say that the child who is alive,but comatose, provides no more companionship than the child thatwas never born, nor can a court know anything about the coma-tose child's "personality and other traits relevant to what kind ofcompanion it might have been and what type of services it mighthave provided." 173 The result is the same paradox the wrongfuldeath statute was enacted to alleviate in the first place - mean-ing it still benefits the tort feasor to kill the fetus rather than tosimply maim it. These same arguments have equal applicationwith regard to pecuniary damages as well.

Finally, the court's decision severely compromises the stat-ute's "broadly remedial objectives"1 74 when it restricts both pecu-niary and loss of society damages. Absent a case where punitivedamages may come into play, the only damages to be recovered forthe wrongful death of a fetus are medical and funeral expenses,pain and suffering, and nominal damages. 175 Such damages arevastly inadequate to compensate the estate of a dead child's rightto life, who has his right to life wrongfully taken away by the care-lessness of another. Given the preamble to the Wrongful DeathAct, it is difficult to believe that the legislature would place such alow value on the human life of anyone recognized as a "person" bythe same statute. This is exactly what the court has done.

F. DiDonato provides no way of changing the law as technology

changes the quality of available evidence

DiDonato's total prohibition of loss of society and pecuniarydamages effectively restricts the law's further growth. It is a fact

171. Id. at 427, 358 S.E.2d at 491.172. 274 N.C. 152, 161 S.E.2d 531 (1968).173. DiDonato, 320 N.C. at 432, 358 S.E.2d at 494.174. Id. at 430, 358 S.E.2d at 493.175. Even these damages, probably the greatest in terms of amount of the

remaining damages allowed, are going to be very difficult to collect under thecourt's language in DiDonato. Id.

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of the modern world that technology is progressing at an almostgeometric rate, especially in the area of reproductive and prenatalmedicine. While the DiDonato court never even mentioned thetechnology available at the time of the decision, a plaintiff in alllikelihood will be able to produce, as technology progresses, soundevidence of a baby's likely personality, physical makeup at birthand as an adult, intelligence, predilection to disease, and the like.As the law stands now, no matter how much of this evidencebecomes available, it cannot aid a plaintiff in recovering damagesfor the wrongful death of a stillborn child. Certainly the court canrevisit the issue at a later time, but there is no guarantee that itwill. In the meantime, many plaintiffs will go without compensa-tion for losses which are provable.

G. Denying loss of society and pecuniary damages based ontheir speculative nature alone is not logically sound

The mainstay of the court's position in refusing to allow lossof society and pecuniary damages is that such damages are toospeculative in nature. Because one cannot know the "personalityand other traits relevant to what kind of companion" an unbornchild would have been and "what kind of services" he may haveprovided, or how intelligent he may been, one cannot take a rea-soned route to arrive at an appropriate assessment of these typesof damages. 176 First, the court never says what "other traits"would be relevant to such a determination. Thus it is difficult toknow if one could make a reasoned finding as to such traits or not.Further, pecuniary, loss of society, and pain and suffering dam-ages are all speculative in nature, according to the court, yet allwrongful death claims under the Act have elements of damagesthat are entirely speculative. Accordingly, the speculative natureof loss of society and pecuniary damages for a stillborn childproves an illogical reason for their denial. In fact, of these threetypes of damages, pain and suffering damages would be the mostspeculative of all as there really is no way of quantitatively prov-ing the degree of pain suffered by a fetus; but surprisingly, ofthese three, pain and suffering damages are the only damagesthat the court has left available to the fetal plaintiff.

The crux of the court's reasoning on this issue is that becauseone cannot know anything about the intangible nature of a fetus,his personality, likes and dislikes, temperament, work ethic, and

176. Id. at 432, 358 S.E.2d at 494.

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the like, pecuniary and loss of society damages are even morespeculative than in the usual case. The court, however, providesno support for this arbitrary finding, and it is surely not an issueof which the court can take judicial notice. The court also fails tolook to precedent on the issue of speculative damages, whichwould have revealed its position in DiDonato as inconsistent withits past jurisprudence.

The court has held that some speculation in the calculation ofdamages cannot preclude damages altogether, and that:

The present monetary value of the decedent... will usually defyany precise mathematical computation. Therefore, the assess-ment of damages must, to a large extent, be left to the good senseand fair judgment of the jury - subject, of course, to the discre-tionary power of the judge to set its verdict value aside when, inhis opinion, equity and justice so require.' 77

The court also stated that "North Carolina cases dealing with aspouse's loss of consortium exhibit courts' increasing willingnessand confidence to let juries assess damages having a somewhatintangible basis."1 78 Loss of consortium has been defined by thesupreme court as service, society, companionship, sexual gratifica-tion, and affection. 179 The court in Nicholson v. Hugh ChathamMemorial Hospital held these types of damages were not tooremote to serve as the basis of a loss of consortium action.' s0

While it is true a spouse can offer evidence of their partner's pastconduct, there is no reason why the estate of a stillborn child can-not introduce evidence of the unborn's health before death, as wellas of their general family background, leaving the task of inferringthe relative value and extent of services and companionship thechild would have provided to his parents to the jury.

DiDonato prevents the estate from even trying to prove suchdamages. The court of appeals in Greer v. Parsons,'' questioning

177. Brown v. Moore, 286 N.C. 664, 673, 213 S.E.2d. 342, 348-49 (1975).178. Christopher P. Edwards, Survey of Developments in North Carolina Law,

1987: A DiDonato v. Wortman and Wrongful Death of a Viable Fetus in NorthCarolina: The Case Against Unreasonably Restricting Damages, 66 N.C. L. REv.1291 (1988) (citing Nicholson v. Hugh Chatham Memorial Hosp., 300 N.C. 295,266 S.E.2d 818 (1980)); Goble v. Helms, 64 N.C. App. 439, 307 S.E.2d 807 (1983),discretionary review denied, 310 N.C. 625, 315 S.E.2d 690 (1984).

179. Nicholson v. Hugh Chatham Memorial Hospital, 300 N.C. 295, 266 S.E.2d818 (1980).

180. Id.181. 103 N.C. App. 463, 405 S.E.2d 921 (1991).

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the validity of the DiDonato rationale for denying loss of societydamages, noted that:

While the companionship and associations that an adult child haswith its parents does depend to some extent upon its character,personality and other traits, kinship is enduring and a parent'sbond with its offspring does not vanish when the child's personal-ity becomes displeasing or its character disappointing. Thus, for ajury to conclude that any normal parent would have enjoyed cud-dling, looking after, playing with and training his or her childregardless of its characteristics would not be "sheer speculation";instead, it would be a rational determination based upon theirknowledge of human experience and the law of probabilities. Nordoes the opinion take into account that the life-long experiencesand insights of jurors accompany them into the box, and that theywould know without proof that children bring sorrow and anxietyas well as joy to their parents and would likely appraise the loss ofany child's society and companionship accordingly.'1 2

The court in Greer took from the jury the ability to hear evidenceon the issue of loss of society and pecuniary damages, and refusedto allow it to decide whether such damages had been sufficientlyproven in the specific case at hand. The court substituted its willfor that of the legislature, and in so doing, it acted contrary to thelegislative purposes of the Wrongful Death Act. Because its posi-tion is neither supported by logic nor the law, it should bechanged.

H. Alternatives to the current law on pecuniary and loss ofsociety damages for the stillborn child

One possible alternative to prohibiting recovery for pecuniaryand loss of society damages is to establish a legal presumptionthat these damages exist whenever wrongful death is proven. Illi-nois is a jurisdiction with such a rule. In Jones v. Karraker,8 3 theIllinois Supreme Court discussed this presumption of pecuniaryloss in wrongful death cases involving viable fetuses.184 Pecuni-ary damages in that case included loss of society damages as well.Using such a system would automatically give plaintiffs a recov-ery unless the defendant could offer evidence to rebut the pre-sumption that some lesser judgment should be rendered. Ifdamages in excess of the presumed amount can be proven by com-

182. Id. at 468-69, 405 S.E.2d at 924-25.183. 457 N.E.2d 23, 24-25 (Ill. 1983).184. Id.

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petent evidence, a jury may award such amounts. Judges canthen assess whether the proof is sufficient to justify an excessaward. Such an alternative would meet the need for some modi-cum of consistency in awarding such damages. Speculation wouldthen virtually disappear from the process, accomplishing theremedial purposes of the statute. Another alternative would be tolegislate a statutory minimum award of such damages in any casewhere the plaintiff prevails in a wrongful death claim for a still-born fetus."8 5 Both of these proposed alternatives have the advan-tage of eliminating speculation and of guaranteeing at least somesignificant recovery for the successful plaintiff.

A third possible approach would be to place a cap on theamount of damages that could be awarded under these catagories.The plaintiff would have the same burden to prove his damages asin any other wrongful death case, but the jury would be restrictedfrom making a large award driven more by emotion than evidence,and the judge would have some guidance as to relative values ofcases in view of the cap. Yet another approach would be to amendthe statute to specifically include the unborn fetus 186 and to over-rule DiDonato. This would leave no question as to the types ofdamages that would be available to this class of plaintiff, and thecourts, as well as plaintiffs, would have clear direction on theissue. Such an approach would also rope in activist courts.

The most obvious alternative is to simply let the process workas it does in every other wrongful death claim. The plaintiff willbear the burden of bringing evidence before the jury that willprove that pecuniary and loss of society damages were actuallysuffered in a particular case. Juries and courts can "look to specificknown factors in assessing the compensable loss. " 187 Such factorsmay include:

(1) the state of pregnancy at which stillbirth occurs; (2) the medi-cal history of the mother with respect to previous childbirth; (3)the number of children the couple presently has; (4) whether themother used artificial means to induce pregnancy, i.e., fertilitydrugs; (5) the probability of the pregnancy going to full term; (6)

185. See Edwards, supra note 178. The statute should probably apply to allpersons under a stated age recognized by the Act to have a cause of action forwrongful death. This would obstensibly remove the uncertainty from all caseswhere the evidence by which to calculate damages is limited by the age andexperience of the decedent.

186. Such amendment could also speak to whether the Act is to cover thenonviable fetus as well.

187. See Meadows, supra note 156.

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any prior history of miscarriage; (7) prenatal care of the stillbornchild; and (8) parental preparation for the forthcoming child, i.e.,house additions, baby crib, and any other indicia of the degree ofexpectation exuded by the parents.188

If the jury award is contrary to the evidence produced, the judgehas the discretion either to set the verdict aside, make an alterna-tive award, or to deny such damages altogether. But where thereis competent evidence, a deserving plaintiff will be allowed torecover those damages the legislature clearly intended for him torecover.

VI. PRENATAL INJURY


Traditionally, a child who was born alive could not recover forprenatally inflicted injuries. The unborn child was viewed to be apart of the mother, and therefore, had no separate existence untillive birth.18 9 The general theory of law disallowing a fetus torecover was expressed in the landmark case of Dietrich v. North-ampton' 190 in 1884. Oliver Wendell Holmes wrote the court's opin-ion in a case involving a child who died shortly after birth due toprenatal injuries. Justice Holmes opined that an unborn childwas still a part of the mother and was not a separate being in itsown right. Thus, any injury suffered by the unborn child wasactually an injury to the mother for which she could maintain acause of action to recover for damages.1 9' This remained the pre-vailing law in the United States for over sixty years.

The most common reasons given for denying recovery for pre-natal injuries were: (1) the unborn child was was part of themother, and thus not a "person" or legally recognized entity capa-ble of possessing legal rights; (2) stare decisis; (3) lack of prece-dent; (4) the difficulty in proving causation in such cases; andfinally (5) the fear of fraud.-92 These rationales did not go withoutcriticism, however; finally, the Federal District Court for the Dis-

188. Id. (citing Danos v. St. Pierre, 383 So. 2d 1019, 1030-31 n.15 (La. Ct. App.1980), aff'd, 402 So. 2d 633 (La. Ct. App. 1981)).

189. Dawn E. Johnson, Note, The Creation of Fetal Rights: Conflicts with,Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95YALE L.J. 599, 601 (1986).

190. 138 Mass. 14 (1884).191. Id. at 17.192. Beth D. Osowski, Note, The Need for Logic and Consistency in Fetal

Rights, 68 N.D. L. R.v. 171, 173 (1992).

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trict of Columbia denied the logic of the rule and held a child whowas born alive could bring an action for prenatally inflicted inju-ries.19' In the 1946 case of Bonbrest v. Kotz,' 94 the courtexamined a medical malpractice case wherein an infant soughtrecovery for injuries she alleged were sustained as a result of herdoctor's negligence in delivering her.195 The court distinguishedBonbrest from Dietrich on the basis Dietrich had not involved adirect injury to a viable child.1 96 The court then asserted thatbecause the plaintiff was a viable fetus at the time the injurieswere suffered, she was by definition a separate entity from hermother.1 97 Accordingly, the court found that the infant's enjoy-ment of life was "sacrosanct" and "inherent" and recognized herindependent right to maintain a cause of action for prenatalinjuries.

198

Bonbrest was the ripple which started a tidal wave of shiftingopinion in this area of the law, resulting in the "most spectacularabrupt reversal of a well-settled rule in the whole history oftorts."199 At present, all American states, including North Caro-lina recognize a cause of action for prenatal injury.20 0

193. Bonbrest v. Kotz, 65 F. Supp. 138 (D.C. Cir. 1946).194. Id.195. Id.196. Id. at 140.197. Id.198. Id. at 142.199. WILLM PROSSER, HANDBOOK OF THE LAW OF TORTS § 55, at 336 (4th ed.

1971).200. See Mace v. Jung, 210 F. Supp. 706 (D. Alaska 1962); Bonbrest v. Kotz, 65

F. Supp. 138 (D.D.C. 1946); Wolfe v. Isbell, 280 So. 2d 758 (Ala. 1973); Scott v.McPheeters, 92 P.2d 678 (Cal. Ct. App. 1939); Prates v. Sears, Roebuck & Co.,118 A.2d 633 (Conn. Super. Ct. 1955); Worgan v. Greggo & Ferrara, Inc., 128A.2d 557 (Del. 1956); Day v. Nationwide Mut. Ins. Co., 328 So. 2d 560 (Fla. Dist.Ct. App. 1976); Tucker v. Howard L. Carmichael & Sons, Inc., 65 S.E.2d 909 (Ga.1951); Rodriquez v. Patti, 114 N.E.2d 721 (Ill. 1953); Wendt v. Lillo, 182 F. Supp.56 (N.D. Iowa 1960); Hale v. Manion, 368 P.2d 1 (Kan. 1962); Orange v. StateFarm Mut. Auto Ins. Co., 443 S.W.2d 650 (Ky. 1969); Cooper v. Blanck, 39 So. 2d352 (La. Ct. App. 1923); Damasiewicz v. Gorsuch, 79 A.2d 550 (Md. 1951); Keyesv. Construction Service, Inc., 165 N.E.2d 912 (Mass. 1960); Womack v. Buckhorn,187 N.W.2d 218 (Mich. 1971); Verkennes v. Corniea, 38 N.W.2d 838 (Minn.1949); Rainey v. Horn, 72 So. 2d 434 (Miss. 1954); Steggall v. Morris, 258 S.W.2d577 (Mo. 1953); White v. Yup, 458 P.2d 617 (Nev. 1969); Bennett v. Hymers, 147A.2d 108 (N.H. 1958); Smith v. Brennan, 157 A.2d 497 (N.J. 1960); Woods v.Lancet, 102 N.E.2d 691 (N.Y. 1951); Gay v. Thompson, 266 N.C. 394, 146 S.E.2d425 (1966); Williams v. Marion Rapid Transit Co., 87 N.E.2d 334 (Ohio 1949);Mallison v. Pomeroy, 291 P.2d 225 (Or. 1955); Sinkler v. Kneale, 164 A.2d 93 (Pa.

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B. North Carolina Law

The first indication that the rule in North Carolina would beto recognize a cause of action for prenatal injury was given in Gayv. Thompson.2 ' While the supreme court denied a cause of actionfor the wrongful death of a viable fetus, it stated in dicta: "Sincethe child must carry the burden of infirmity that results fromanother's tortious act, it is only natural justice that it, if bornalive, be allowed to maintain an action on the ground of actionablenegligence. "202

The issue remained dormant until the 1968 case of Stetson v.Easterling.2°3 In Stetson, the court formally recognized a viablefetus which had suffered prenatal injuries could recover damagesfor such injuries if born alive.204

The Stetson court examined the alleged wrongful death of aviable fetus. To determine if there was a cause of action, the courtfirst addressed the threshold issue of whether the plaintiff couldhave sued the defendant for his death-causing injuries had helived.20 5 An affirmative answer was required by the wrongfuldeath statute before such an action could be maintained.

The court noted this was a question of first impression in thisjurisdiction, confirming that it had not actually held such anaction existed in Gay v. Thompson.206 Citing briefly to cases andtreatises listing the In]umerous decisions, texts and Law Reviewarticles" which articulated the majority rule of allowing recoveryfor prenatal injury, the court quoted the language from Gay v.Thompson 20 7 and held this statement was adopted as authorativein this jurisdiction.20° No elaboration accompanied this declara-tion. Furthermore, the question of whether the plaintiff had to be

1960); Sylvia v. Gobeille, 220 A.2d 222 (R.I. 1966); Hall v. Murphy, 113 S.E.2d790 (S.C. 1960); Shousha v. Matthews Drivurself Service, Inc., 358 S.W.2d 471(Tenn. 1962); Leal v. C.C. Pitts Sand & Gravel, Inc., 419 S.W.2d 820 (Tex. 1967);Seattle First Nat. Bank v. Rankin, 367 P.2d 835 (Wash. 1962); Kwaterski v.State Farm Mut. Auto Ins. Co., 148 N.W.2d 107 (Wis. 1968).

201. 266 N.C. 394, 146 S.E.2d 425 (1966). See supra notes 16-28 andaccompanying text for a more detailed discussion of Gay.

202. Gay, 266 N.C. at 339, 146 S.E.2d at 429.203. 274 N.C. 152, 161 S.E.2d 531 (1968). See supra notes 29-46 and

accompanying text for discussion of this case.204. Stetson, 274 N.C. at 156, 161 S.E.2d at 534.205. N.C. GEN. STAT. § 28-173 was the statutory cite in 1968.206. Stetson, 274 N.C. at 156, 161 S.E.2d at 534.207. Id. See supra text accompanying note 202.208. Stetson, 274 N.C. at 155, 161 S.E.2d at 533-34.

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viable at the time the injuries occurred in order to state a cause ofaction remained unanswered.

Since Stetson, no case in North Carolina has directlyaddressed the prenatal injury cause of action issue. In DiDonatov. Wortman, the Supreme Court of North Carolina simply recog-nized that such an action existed.20 9 Similarly, in Johnson v.Ruark Obstetrics & Gynecology Associates, P.A.,21 o the North Car-olina Court of Appeals specifically witheld judgment on the issueof whether the defendants in that case owed a duty to the fetalplaintiff prior to her reaching viability or whether her achievingviability was nothing more than a condition precedent to suitunder the Wrongful Death Act.21' Thus, Stetson is the controllingcase on this issue in North Carolina.

C. Analysis

It is clearly the rule in North Carolina that a child who is bornalive can sue to recover damages for injuries suffered while still inthe womb.212 This, however, is where the clarity ends. From thetwo cases that address the issue, a single quotation represents thetotality of the stated law regarding this judicially created cause ofaction.213

1. Viability

Stetson does not mention whether a plaintiff must have beenviable at the time the alleged injuries occured in order to state acause of action for prenatal injuries. The court simply stated thata child, if born alive, is allowed to maintain an action on theground of actionable negligence.2 14 Tort law, in general, has norule on viability, and the majority of American jurisdictions holdthat viability is not a factor in stating a cause of action for prena-tal injury.215 In several jurisdictions, however, there exists caselaw holding the opposite.2 16 While the North Carolina Supreme

209. DiDonato, 320 N.C. at 424, 358 S.E.2d at 491.210. 89 N.C. App. 154, 365 S.E.2d 909 (1988).211. Id. at 161, 365 S.E.2d at 914.212. Stetson, 274 N.C. at 156, 161 S.E.2d at 534.213. See supra text accompanying note 201.214. The plaintiff in Stetson was a viable fetus at the time of injury.215. See 62A Am. JuR. 2D Prenatal Injurites; Wrongful Life, Birth, or

Conception § 18 (1990); Kathleen Gormley, Note, A Century of Change: Liabilityfor Prenatal Injuries, 22 WASHBURN L.J. 268 (1983).

216. Id.

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Court will apparently require viability to state a wrongful deathclaim, this fact is of little consequence in the prenatal injury con-text because a wrongful death claim is purely statutory, and a pre-natal injury claim arises from the common law.

Given the majority rule is that viability is not required tobring a prenatal injury action, coupled with the fact the NorthCarolina Supreme Court did not specifically require viability ofthe plaintiff when it stated the rule, viability should not beassumed to be a requirement of a prenatal injury action in NorthCarolina. In any event, the conglomerate of critical legal opinion,including cases, treatises and law reviews, makes clear that this isthe better rule.217

2. Damages

The issue of damages is also left open to debate. Given theNorth Carolina Supreme Court's limitation of damages for a fetalplaintiff in a wrongful death case, its silence on this issue withregard to a claim for prenatal injury is deafening. The issues inboth cases seem to be roughly the same, except that in the wrong-ful death context damages are deliniated by statute and thusinvolve the exercise of statutory construction. The policy consider-ations, however, are identical. If a fetal plaintiff could not possi-bly prove he suffered concrete pecuniary damages in a wrongfuldeath action as a matter of law, how could he prove such damagesin the prenatal injury context? There are some differences, ofcourse, given that the latter is still alive and may have ascertain-able abilities and other "relevant factors" that the former does not.The problem is the court has given no indication on how it willview such issues in the prenatal injury context. Again, it shouldbe assumed that where the court is silent on this issue, normaltort law rules apply and the plaintiff may recover any damages hecan substanitally prove.

217. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW oF.TORTS § 55,at 368 n.7 (5th ed. 1984); Kathleen Gormley, Note, A Century of Change:Liability for Prenatal Injuries, 22 WASHBURN L.J. 268, 271-72 (1983); Michael D.Morrison, Note, Torts Involving the Unborn: A Limited Cosmology, 31 BAYLOR L.REV. 131, 141-44 (1979); 62A Am. JUR. 2D Prenatal Injuries; Wrongful Life, Birth,or Conception § 6 (1990); Beth D. Osowski, Note, The Need for Logic andConsistency in Fetal Rights, 68 N.D. L. REV. 171, 191 (1992); Todd v. SandidgeConstr. Co., 341 F.2d 75 (4th Cir. 1964) (Haynsworth. J., dissenting).

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3. Contibutory Negligence

North Carolina is among the small minority of states that fol-low a contributory negligence theory of tort law.2 18 This gives riseto the issue of whether a child making a claim for prenatal injurycan be barred from recovery because of the negligent acts of hismother which contributed to his harm.219 The North CarolinaSupreme Court has not reached this issue either. The cause ofaction belongs to the child, and he is the plaintiff in law.22 ° Themother's negligent actions should not serve to bar the child'saction, nor should the child be able to sue the mother for negli-gence for such acts.221 North Carolina still recognizes parentalimmunity.2 2 2 Thus, the mother's negligence should be seen asirrelevant on the issue of contributory negligence and on the issueof damages given the rule of joint and several liability.

4. Malpractice claims

Ledford v. Martin2 21 provides that a doctor who takes on an

expectant mother as a patient also has a duty to the unborn child.When that duty attaches in a prenatal injury suit is unclear. Theissue would presumably revolve around the viability question.2 2 4

The difficulty with this issue is compounded by the lack of gui-

218. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 648,423 S.E.2d 72, 73-74 (1992) (holding plaintiff's contributory negligence is a bar torecovery from a defendant who commits an act of ordinary negligence).

219. See generally, Roland F. Chase, Annotation, Liability for PrenatalInjuries, 40 A.L.R.3d 1222 (1971).

220. N.C. GEN. STAT. § IA-1, Rule 17(b)(1) (1990 & Supp. 1994).221. Allowing a child to sue his mother for prenatal injury evokes a frightening

scenario. While there are a few jurisdictions that allow such an action (they haveabolished the family immunity doctrine), most do not allow it. A mother could beheld accountable for any act that could be interpreted to have in some wayharmed the child while in the womb. Poor eating habits, smoking , drinkingalcohol, excessive weight gain, failure to take prenatal vitamins or get adequateprenatal care - all would be grounds for suit if a child were given the right to doso. See Deborah M. Santello, Note, Maternal Tort Liability for Prenatal Injuries,22 SUFFOLK U. L. REV. 747 (1988). In the criminal context, the debate becomeseven more heated where district attorneys attempt to prosecute mothers underdrug distribution and child abuse statutes for abusing drugs during pregnancy.

222. Skinner v. Whitley, 281 N.C. 476, 484, 189 S.E.2d 230, 235 (1972) (holdingchildren have no cause of action against their parents for ordinary acts ofnegligence).

223. 87 N.C. App. 88, 91, 359 S.E.2d 505, 507 (1987), discretionary reviewdenied, 321 N.C. 473, 365 S.E.2d 1 (1988).

224. See supra notes 214-17 and accompanying text.

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dance on the parameters of that duty. Does the doctor have equalduties to both the mother and her unborn child? If so, if itbecomes medically necessary to take action in the care of one thatwould harm the other, what is the doctor to do to avoid liability?

The issue of informed consent also arises in this context. Adoctor who fails to obtain informed consent from the mother for aprocedure that causes harm to both the mother and her unbornchild is likely to be liable to both the mother and the child if thechild is born alive.225

D. A Note about Federal Law

In Sox v. United States,226 a prenatal injury case was sucess-fully brought under the Federal Tort Claims Act. In Sox, aUnited States Army vehicle negligently struck an automobile car-rying a woman who was six months pregnant.227 As a result ofthe accident, the court found the unborn child suffered brain dam-age which affected her ability to see, hear, speak, comprehend, useher arms, feet and hands, and to exert any muscular control.228

As a result, the child was allowed to state a claim under theAct.

2 29

VII. CRIMINAL LAw


The common law of England did not recognize the killing of aunborn child as a homicide. Sir Edward Coke wrote that the kill-ing of a quick, but unborn, child "is a great misprison, and no mur-der: but if the childe be born alive and dieth ... this is murder: forin law it is accounted a reasonable creature, in rerum natura,when it is born alive."2

10 American jurisdictions had fully

accepted the English "born alive" rule by 1850.231 The rationalefor the rule was based on the fact that it was, at the time, very

225. 62A Am. JUR. 2D Prenatal Injuries; Wrongful Life, Birth, or Conception § 7(1990).

226. 187 F. Supp. 465 (E.D.S.C. 1960).227. Id. at 467.228. Id.229. See infra notes 378-82 and accompanying text for a discussion regarding a

fetus' ability to bring a 42 U.S.C. § 1983 civil rights claim.230. Sm EDWARD COKE, THE THmID PART OF THE INSTITUTES OF THE LAWS OF

ENGLAND, 50 (David S. Berkowitz el al. eds., 1979).231. Gary V. Perko, Note, State v. Beale and the Killing of a Viable Fetus: An

Exercise in Statutory Construction and the Potential for Legislative Reform, 68

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difficult to establish the corpus delecti of the homicide of anunborn child, as it was difficult to establish when the fetus beganto live, how it died, and when it died.23 2 Advancements in medicaltechnology have completely eliminated the basis for this rationaleand some states have changed the rule, either by judicial fiat or bylegislative enactment.

Today, thirty states have adopted the "born alive" rule byjudicial decision.233 North Carolina was the most recent additionto that list.234 The supreme courts of three states have inter-preted their homicide statutes to include the killing of a viablefetus.235 Five states have enacted statutes which directly addressthe killing of a fetus as homicide,236 and others have passed "feti-

N.C. L. REV. 1144, 1146 (citing Keeler v. Superior Court, 470 P.2d 617, 621 (Cal.1970)).

232. Id. (quoting People v. Guthrie, 334 N.W.2d 616, 617 (Mich. 1983)). Seealso R. P. Davis, Annotation, Corpus delecti in prosecution for killing of newbornchild, 159 A.L.R. 523 (1945).

233. See Clarke v. State, 23 So. 67 (Ala. 1898); Meadows v. State, 722 S.W.2d584 (Ark. 1987); Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970); State v.Anonymous, 516 A.2d 156 (Conn. 1986); State v. McCall, 458 So. 2d 875 (Fla.Dist. Ct. App. 1984); White v. State, 232 S.E.2d 57 (Ga. 1977); People v. Greer,402 N.E.2d 203 (Ill. 1980); State v. Winthrop, 43 Iowa 519 (1876); State v.Trudell, 755 P.2d 511 (Kan. 1988); Hollis v. Commonwealth, 652 S.W.2d 61 (Ky.1983); State v. Brown, 378 So. 2d 916 (La. 1980); People v. Guthrie, 293 N.W.2d775 (Mich. Ct. App. 1980), appeal denied, 334 N.W.2d 616 (Mich. 1983); State v.Soto, 378 N.W.2d 625 (Minn. 1985); Taylor v. State, 66 So. 321 (Miss. 1914);State v. Doyle, 287 N.W.2d 59 (Neb. 1980); State in the Interest of A.W.S., 440A.2d 1144 (N.J. Super. Ct. App. Div. 1981); State v. Willis, 652 P.2d 1222 (N.M.Ct. App. 1982); People v. Hayner, 90 N.E.2d 23 (N.Y. 1949); State v. Beale, 324N.C. 87, 376 S.E.2d 1 (1989); State v. Sogge, 161 N.W. 1022 (N.D. 1917); State v.Dickinson, 275 N.E.2d 599 (Ohio 1971); State v. McKee, 1 Add. 1 (Pa. 1791);State v. Amaro, 448 A.2d 1257 (R.I. 1982); State v. Evans, 745 S.W.2d 880 (Tenn.Crim. App. 1987); Harris v. State, 12 S.W. 1102 (Tex. Ct. App. 1889); State v.Larsen, 578 P.2d 1280 (Utah 1978); Lane v. Commonwealth, 248 S.E.2d 781 (Va.1978); State ex rel. Atkinson v. Wilson, 332 S.E.2d 807 (W. Va. 1985); Huebner v.State, 111 N.W. 63 (Wis. 1907); Bennett v. State, 377 P.2d 634 (Wyo. 1963).

234. State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989).235. Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989);

Commonwealth v. Cass, 467 N.E.2d 1324 (Mass. 1984); State v. Home, 319S.E.2d 703 (S.C. 1984); Foster v. State, 196 N.W. 233 (Wis. 1923).

236. See CAL. PENAL CODE § 187(a) (West 1988) (defining murder as "theunlawful killing of a human being or a fetus, with malice aforethought"); ILL.REV. STAT. ch. 720, para. 9-1.2 (1994) (creating the crime of "Intentionalhomicide of an unborn child"); MmiN. STAT. §§ 609.266-.269 (1993) (establishingseparate, comprehensive homicide statutes encompassing unborn children); N.Y.PENAL LAW § 125.00 (McKinney 1987) (including unborn child of twenty-fourweeks gestational age or more within New York statutory definition of homicide);

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cide" statutes that make killing a fetus a crime on the level ofmanslaughter.237


North Carolina recently addressed the issue of fetal homicidein State v. Beale.238 In Beale, the supreme court held that killinga viable but unborn fetus is not homicide within the meaning ofthe state's murder statute.2 39

The defendant, Donald Ray Beale, Jr., shot his pregnant wifein the head with a shotgun. Mrs. Beale's unborn child was fullterm and twelve days past its expected delivery date on the dayshe was shot. Mrs. Beale had been having contractions earlierthat day.240 Mrs. Beale and her baby were pronounced dead onarrival at the hospital.

Mr. Beale was initially indicted on one count of murder in vio-lation of section 14-17 of the General Statutes of North Carolina,and one count of destroying a fetus in violation of section 14-44 ofthe General Statutes of North Carolina.24 1 This indictment waslater superceded by an indictment for two counts of murder undersection 14-17.242 Beale moved to dismiss the count of murder ofthe unborn child on the basis that his acts did not constitute mur-der under North Carolina's murder statute.243 The supreme courtchose to review the trial court's denial of Beale's motion on a writof certiori.244

The court's task was to "determine whether the unlawful,willful and felonious killing of a viable but unborn child is murderwithin the meaning of N.C.G.S. § 14-17 ."245 The court found that

UTAH CODE ANN. § 76-5-201 (1990) (including unborn child within protections ofUtah criminal homicide law).

237. See ARiz. REV. STAT. ANN. § 13-1103 (1989); FLA. STAT. ch. 782.09 (1976);NEV. REV. STAT. § 200.210 (1985); R.I. GEN. LAwS § 11-23-5 (1981). Georgia'sstatute imposes life imprisonment for the crime of feticide, GA. CODE ANN. § 16-5-80 (1988).

238. 324 N.C. 87, 376 S.E.2d 1 (1989).239. Id. at 93, 376 S.E.2d at 4.240. This fact is significant because it illustrates how close to being born alive

Mrs. Beale's baby actually was.241. Beale, 324 N.C. at 88, 376 S.E.2d at 1.242. Id.243. Id.244. Id.245. Id. N.C. GEN. STAT. § 14-17 (1988) read as follows at the time of the case:

1. Murder in the first and second degree defined; punishment.

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the statute did not define "murder," and thus did not offer directguidance on whether that term encompassed the willful killing ofa viable fetus.246 The court then noted that murder as used in thestatue was defined at common law and North Carolina hadadopted the common law.24 v The common law did not recognizethe killing of an unborn child as murder.2 48

The State argued the common law rule should be abandoned,especially in light of the North Carolina Supreme Court's decisionin DiDonato v. Wortman.2 49 To bolster its argument, the Statecited cases in three states where high courts had abandoned thecommon law rule and chose to recognize the killing of an unbornchild as murder under their respective homicide statutes.25 0 Cit-ing the court's authority to alter judicially determined commonlaw when necessary to do so in light of experience and reason, theState asserted that advances in medical technology had obviatedthe rationale of the "born alive" rule.251 The court disagreed.252

The court examined the cases cited by the State in whichthree states had abandoned the common law rule.253 It found the"overwhelming majority of courts" which had considered the issueand remained with the common law rule more convincing on thispoint.25 4 It further found that "[tihe creation and expansion ofcriminal offenses is the prerogative of the legislative branch of thegovernment. The legislature has considered the question of inten-tionally destroying a fetus and determined the punishment there-

A murder which shall be perpetrated by means of poison, lying inwait, imprisonment, starving, torture, or by any other kind of willful,deliberate, and premeditated killing... shall be deemed to be murder inthe first degree, and any person who commits such murder shall bepunished with death or imprisonment in the State's prison for life as thethe court shall determine .... All other kinds of murder ... shall bedeemed murder in the second degree, and any person who commits suchmurder shall be punished as a class C felon.

The statute has since been amended and remains listed as section 14-17, withthe latest amendment taking effect January 1, 1995.

246. Beale, 324 N.C. at 89, 376 S.E.2d at 1-2.247. Id.248. Id.249. 320 N.C. 423, 358 S.E.2d 489 (1987).250. Beale, 324 N.C. at 90, 376 S.E.2d at 2. See also supra note 235.251. Beale, 324 N.C. at 90, 376 S.E.2d at 2. See also supra notes 230-32 and

accompanying text (statement of the rule and its rationale).252. Beale, 324 N.C. at 90, 376 S.E.2d at 2.253. Id. at 90-92, 376 S.E.2d at 2-4.254. Id. at 92-93, 376 S.E.2d at 3-4.

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for."25r The statute the court was refererring to was section 14-44.

The existence of this statute, coupled with the fact that the legis-lature had amended the murder statute more than once withoutchanging its wording to encompass an unborn child, led the courtto conclude that there was no clear legislative intent to change thecommon law rule upon which the statute was based.25 6

Construing the criminal statute narrowly, the court held that"any extension of the crime of murder under N.C.G.S. § 14-17 isbest left to the discretion and wisdom of the legislature."257Defendant's motion to dismiss the murder indictment for the kill-ing of the unborn child was allowed and the lower courtreversed.25 8

Under Beale, a person cannot be prosecuted for murder forthe killing of an unborn child under section 14-17. Such a personcan be prosecuted under section 14-44.

C. North Carolina Law on Abortion

North Carolina has outlawed abortion since 1881.259 Section14-44 of the General Statutes of North Carolina reads as follows:

Using drugs or instruments to destroy unborn child.If any person shall willfully administer to any woman, either preg-nant or quick with child, or prescribe for any such woman, oradvise or procure any such woman to take any medicine, drug orother substance whatever, or shall use or employ any instrumentor other means with intent thereby to destroy such child, he shallbe punished as a Class H felon.26 °

The phrase "either pregnant or quick with child" has been ren-dered to mean "pregnant with a child that is quick" by the NorthCarolina Supreme Court.26 1 Evidence on the question of quicken-ing is required to convict a defendant under this statute.26 2 Themother cannot be prosecuted as an accomplice to the commissionof this felony, even if she consents to it. 263 The statute applies toany act by a party, other than the mother, committed with the

255. Id. at 92, 376 S.E.2d at 4.256. Id. at 93, 376 S.E.2d at 4.257. Id.258. Id.259. N.C. GEN. STAT. § 14-44 (1993).260. Id.261. State v. Jordan, 227 N.C. 579, 42 S.E.2d 674 (1947).262. State v. Forte, 222 N.C. 537, 23 S.E.2d 842 (1943).263. State v. Shaft, 166 N.C. 407, 81 S.E. 932 (1914).

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intent of killing an unborn child, unless such act falls under theprotection of section 14-45.1 of the General Statutes of NorthCarolina.

Abortion is legal, however, when performed with the mother'sconsent within the first twenty weeks of gestation as long as itperformed by a licensed physician in North Carolina in a hospitalor clinic certified by the state.2 64 Nor is abortion illegal where it isprocured to alleviate a substantial life-threatening risk to themother.265 State abortion law is limited by federal case law on thesubject.266

C. Analysis

The North Carolina Supreme Court's decision in Beale madeit clear the courts would not assume a legislative role in interpret-ing the murder statute. Thus, it is very unlikely any prosecutorwill be successful in pursuing murder in a case involving the kill-ing of an unborn child. Currently, the only available avenue ofcriminal prosecution is under section 14-44, for which the maxi-mum penalty is ten years imprisonment, a fine, or both.26 7

The result of the court's finding in Beale does not settle wellwhen compared with the results of DiDonato in the wrongfuldeath realm. If an unborn child is a "person" for purposes ofwrongful death, it seems to follow logically that he is a "person"for purposes of the crime of murder as well. The court's opinion inBeale, however, is soundly reasoned and its restraint admirable.It is the legislature's task to expand the scope of a criminal stat-ute. Thus, it will be up to the North Carolina General Assembly toreconcile the inconsistency.268

264. N.C. GEN. STAT. § 14-45.1 (1993).265. Id.266. See Roe v. Wade, 410 U.S. 113 (1973), and its progeny for the scope of

federal abortion law.267. See N.C. GEN. STAT. § 14-1.1 (1993) for a listing of penalties assigned to

each class of felony in North Carolina. Violation of § 14-44 of the General Statuteof North Carolina is a Class H felony. N.C. GEN. STAT. § 14-44 (1993). Also,although there have been no cases at the appellate level which have tested thisissue under section 20-141.4 of the General Statutes of North Carolina-thevehicular homicide statute-or the common law crime of manslaughter, it is verylikely that on the basis of Beale one could not be successfully prosecuted forkilling a fetus in either one of these contexts.

268. See supra notes 253-58 (discussion of possible legislative actions thatwould impose a more severe penalty for the killing of an unborn child).

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VIII. WRONGFUL LIFE, BIRTH, AND PREGNANCY


Claims for wrongful life, birth, and pregnancy are of recentvintage in the long history of tort law. It was not until abortionwas a legal option to giving birth2 69 that such claims began to pro-liferate. Now these claims are brought with increasing frequency,and increasing success.

Wrongful life is a claim brought by, or on behalf of, a childwho has been born with some type of impairment. Typically, thechild will allege that the defendant, normally the mother's physi-cian, did know or should have known before the child was bornthat it had the impairment and was negligent in handling thatinformation. The crux of the claim is, had the child's parentsknown of the impairment, they would have aborted the child, sav-ing it from a life filled with misery due to the impairment. Inother words, the child claims that he would have been better offdead than living with the impairment.

Most wrongful life claims are predicated on one of two scena-rios. The first is where the mother's physician negligently fails todiagnose a fetal impairment before birth or before the third tri-mester, at which time abortion is no longer an option. The secondis where the physician knows there is a likelihood of impairment,or positively identifies an impairment, but fails to reveal thisinformation to the parents or to fully inform them of their options.

Wrongful birth is a medical malpractice claim by the parentsof a child born with an impairment. The complaint alleges thatbut for the negligence of the physician in failing to diagnose orinform them of the impairment before birth, they would haveavoided conception or aborted the child. The cases fall mainly intothe same two categories as the wrongful life claims, but can alsoinclude the scenario of a botched abortion.

Wrongful conception and pregnancy claims also sound in mal-practice, being brought by parents who become pregnant after anegligently performed sterilization or abortion procedure. Theessence of this claim is that the harm flows from the fact a childhas been conceived or born against the parents' wishes.

At present, a majority of American jurisdictions have rejectedclaims for wrongful life.270 Eighteen states and the District of

269. See Roe v. Wade, 410 U.S. 113 (1973).270. The states whose courts have denied wrongful life claims include: Elliott

v. Brown, 361 So. 2d 546 (Ala. 1978); Moores v. Lucas, 405 So. 2d 1022 (Fla. Dist.

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Columbia have recognized a cause of action for wrongful birth.2 7 'An overwhelming majority of jurisdictions recognize a claim forwrongful pregnancy/conception.

2 72

These claims present an incredible spectrum of legal ques-tions that are beyond the scope of this article. Suffice it to say that

Ct. App. 1981); Blake v. Cruz, 698 P.2d 315 (Idaho 1984); Siemieniec v. LutheranGen. Hosp., 512 N.E.2d 691 (Ill. 1987); Bruggeman v. Schimke, 718 P.2d 635(Kan. 1986); Pitre v. Opelousas Gen. Hosp., 517 So. 2d 1019 (La. Ct. App. 1987),

aff'd in part, rev'd in part on other grounds, 530 So. 2d 1151 (La. 1988);Strohmaier v. Associates in Obstetrics & Gynecology, 332 N.W.2d 432 (Mich. Ct.App. 1982); Smith v. Cote, 513 A.2d 341 (N.H. 1986); Becker v. Schwartz, 386N.E.2d 807 (N.Y. 1978); Azzolino v. Dingfelder, 315 N.C. 103, 337 S.E.2d 528(1985), cert. denied, 479 U.S. 835 (1986); Ellis v. Sherman, 515 A.2d 1327 (Pa.1986); Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984); Dumer v. St. Michael'sHosp., 233 N.W.2d 372 (Wis. 1975).

Three jurisdictions have recognized wrongful life causes of action: Turpin v.Sortini, 643 P.2d 954, (Cal. 1982); Procanik v. Cillo, 478 A.2d 755 (N.J. 1984);Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983).

271. Robak v. United States, 658 F.2d 471 (7th Cir. 1981); Andalon v. SuperiorCourt, 208 Cal. Rptr. 899 (Cal. Ct. App. 1984); Haymon v. Wilkerson, 535 A.2d

880 (D.C. 1987); Moores v. Lucas, 405 So. 2d 1022 (Fla. Dist. Ct. App. 1981);

Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691 (Ill. 1987); Pitre v. OpelousasGen. Hosp., 517 So. 2d 1019 (La. Ct. App. 1987); ME. REV. STAT. ANN. tit. 24,§ 2931 (West Supp. 1988); Proffitt v. Bartolo, 412 N.W.2d 232 (Mich. Ct. App.

1987); Smith v. Cote, 513 A.2d 341 (N.H. 1986); Procanik v. Cillo, 478 A.2d 755(N.J. 1984); Becker v. Schwartz, 386 N.E.2d 807 (N.Y. 1978); Gallagher v. DukeUniv., 638 F. Supp. 979 (M.D.N.C. 1986), aff'd in part, vacated in part, 852 F.2d

773 (4th Cir. 1988); Speck v. Finegold, 439 A.2d 110 (Pa. 1981); Phillips v. United

States, 508 F. Supp. 544 (D.S.C. 1981); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975); Naccash v. Burger, 290 S.E.2d 825 (Va. 1982); Harbeson v. Parke-Davis,

Inc., 656 P.2d 483 (Wash. 1983); James G. v. Caserta, 332 S.E.2d 872 (W. Va.

1985); Dumer v. St. Michael's Hosp., 233 N.W.2d 372 (Wis. 1975).272. See Boone v. Mullendore, 416 So. 2d 718 (Ala. 1982); University of Ariz.

Health Sciences Ctr. v. Superior Court, 667 P.2d 1294 (Ariz. 1983) (en banc);Wilbur v. Kerr, 628 S.W.2d 568 (Ark. 1982); Turpin v. Sortini, 643 P.2d 954 (Cal.

1982) (en bank); Ochs v. Borrelli, 445 A.2d 883 (Conn. 1982); Fassoulas v.

Ramey, 450 So. 2d 822 (Fla. 1984); Fulton-DeKalb Hosp. Auth. v. Graves, 314

S.E.2d 653 (Ga. 1984); Blake v. Cruz, 698 P.2d 315 (Idaho 1984); Byrd v. Wesley

Medical Center, 699 P.2d 459 (Kan. 1985); Schork v. Huber, 648 S.W.2d 861 (Ky.

1983); Jones v. Malinowski, 473 A.2d 429 (Md. 1984); Troppi v. Scarf, 187N.W.2d 511 (Mich. Ct. App. 1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169(Minn. 1977); Miller v. Duhart, 637 S.W.2d 183 (Mo. Ct. App. 1982); Kingsbury v.Smith, 442 A.2d 1003 (N.H. 1982); Schroeder v. Perkel, 432 A.2d 834 (N.J. 1981);Bowman v. Davis, 356 N.E.2d 496 (Ohio 1976); Speck v. Finegold, 439 A.2d 110

(Pa. 1981); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Naccash v. Burger,290 S.E.2d 825 (Va. 1982); McKernan v. Aasheim, 687 P.2d 850 (Wash. 1984) (en

banc); Dumer v. St. Michael's Hosp., 233 N.W.2d 372 (Wis. 1975); Beardsley v.Wierdsma, 650 P.2d 288 (Wyo. 1982).

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these types of actions exemplify the difficulty the law encounterswhen its definitions and policies in one area of the law are notconsistent with those in another closely related area of law.


North Carolina is among those jurisdictions that has rejectedthe wrongful life and wrongful birth claims. It does, however, rec-ognize wrongful pregnancy/conception.

1. Wrongful Life and Birth

Thus far, the only North Carolina case dealing with thesetypes of claims is Azzolino v. Dingfelder.2 3 The supreme court, ina case of first impression, was asked to rule on whether a childborn with Down's Syndrome could recover damages under a claimof "wrongful life," and whether his parents could likewise recoverdamages under a claim for "wrongful birth."274 The plaintiffsalleged that Mrs. Azzolino's physician negligently failed to adviseher and her husband properly, and incorrectly advised them withrespect to the availability of amniocentesis and genetic counsel-ing. The parents claimed that had such testing and counselingtaken place, the results would have revealed the unborn child suf-fered from Down's Syndrome and they would have had an abor-tion. Michael Azzolino, the child plaintiff, claimed he suffereddamages simply by being born with Down's Syndrome and but forthe doctor's negligence, he would never have suffered birth andlife with his affliction. 5

In a third claim, Michael's siblings alleged his birth forcedfinancial and emotional hardship on the entire family and haddeprived them of the society of their parents, who were now forcedto spend the bulk of their time at home caring for Michael.2 7 6 TheAzzolino court summed up the gravamen of the case: "The essenceof the plaintiffs' claims is that but for the negligence of the defend-ants, Michael would never have been born at all and he, his par-ents and his siblings would not have suffered from his afflictionwith Down's Syndrome."2 7 7

The Azzolino court approached the issues separately, begin-ning with the wrongful life claim. Considering whether such a

273. 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 479 U.S. 835 (1986).274. Id. at 104, 337 S.E.2d at 530.275. Id. at 104-105, 337 S.E.2d at 530.276. Id.277. Id. at 108, 337 S.E.2d at 532.

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cause of action would lie in this jurisdiction, the court assumed forthe sake of argument that the defendants owed a duty to Michaelin utero and had breached this duty and were thus the proximatecause of his birth.278 The court further assumed for the sake ofargument the parents would have actually had an amniocentesisafter proper counseling and then had Michael aborted in lieu ofthe Down's Syndrome diagnosis. 279 The question left for resolutionwas whether, under application of traditional tort concepts,Michael "ha[d] suffered any legally cognizable injury."280 TheAzzolino court disagreed with the court of appeals' finding that itwas "unwilling, and indeed, unable to say as a matter of law thatlife even with the most severe and debilitating of impairments isalways preferable to nonexistence,"28 1 stating that "[wie take aview contrary to that of the Court of Appeals. Therefore, we con-clude that life, even live with severe defects, cannot be an injury inthe legal sense."28 2 This conclusion formed the foundation uponwhich the rest of the court's decision was forged.

The court in Azzolino was not unappreciative of the difficultissues evoked by this type of case, and shared the concernsexpressed by the plaintiffs. But absent "clear legislative guidanceto the contrary," the court found more compelling the view of theNew York Court of Appeals in a similar case which held that"Ir]ecognition of so novel a cause of action requiring, as it must,creation of a hypothetical formula for the measurement of aninfant's damages is best reserved for legislative, rather than judi-cial attention."28 The court also noted that the overwhelmingmajority of jurisdictions which had considered the issue hadrejected wrongful life claims, and reversed the court of appeals,holding that "such claims . . . are not cognizable at law in thisjurisdiction."8 4

The Azzolino court next examined the parents' claim forwrongful birth, noting immediately that courts which had consid-ered the question had almost unanimously recognized claims forwrongful birth when the parents would have aborted the child but

278. Id.279. Id.280. Id.281. Id. at 109, 337 S.E.2d at 532 (quoting Azzolino v. Dingfelder, 71 N.C. App.

289, 300, 322 S.E.2d 567, 576 (1984)).282. Id.283. Id. at 109-10, 337 S.E.2d at 533 (quoting Becker v. Schwartz, 386 N.E.2d

807, 812 (N.Y. 1978)).284. Id. at 110, 337 S.E.2d at 533.

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for the negligence of the defendant.285 Despite this trend, thecourt held that "claims for relief for wrongful birth of defectivechildren 28

1 shall not be recognized in this jurisdiction absent aclear mandate by the legislature."28 v

In its analysis of the wrongful birth claim, the Azzolino courtagain assumed a duty was owed and subsequently breached bythe defendants, strictly for the sake of argument.28 8 The issue ofproximate cause was a little stickier in this instance since eventhe plaintiffs admitted Michael was already in existence andgenetically defective when they first met the defendants. Never-theless, the court assumed proximate cause also existed for thesake of argument.289

Justice Mitchell, dealing only with the issue of damages giventhe court's assumptions in argument, noted the only "damages theplaintiffs allege they have suffered arise, if at all, from the failureof the defendants to take steps which would have led to abortion ofthe already existing and defective fetus."290 Justice Mitchellfound that although courts which had recognized wrongful birthactions claimed to answer the damages question through applica-tion of traditional tort analysis, to hold ."the existence of a humanlife can constitute an injury congnizable at law . . . such a steprequires a view of human life previously unknown to the law ofthis jurisdiction."29 1

285. Id. (citing Gregory G. Sarno, Annotation, Tort Liability for WrongfullyCausing One to be Born, 83 A.L.R.3D 15 (1978 & Supp. 1985)).

286. It appears to be a trend that writers in this area refer to children bornwith physical deformaties, congenital diseases, or some other form of impairmentas "defective children." This is disturbing. Defective has definite negativeconnotations in American society and use of the term in this context makes aninherent value statement with regard to how the child to which it refers isviewed. When society accepts that a human being should be viewed as"defective" it starts down the slippery slope towards making value judgments asto a minimum acceptable standard of life. Anyone that falls below that level canthen be legally viewed as expendable, supported by the rationale used inwrongful life and birth cases, that even though they are now living, it would bebetter for them to die than to continue on with an affliction that brings their lifebelow the minimum acceptable level. This is, of course, one of the primaryrationales for euthanasia of the terminally ill, and thus, the trip down theslippery slope has already begun in some respects.

287. Azzolino, 315 N.C. at 110, 337 S.E.2d at 533.288. Id.289. Id. at 111, 337 S.E.2d at 533.290. Id. at 111, 337 S.E.2d at 534.291. Id.

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The Azzolino court reviewed the approaches of other jurisdic-tions which had recognized a wrongful birth action and concludedthere reigned an uncertainty and lack of uniformity amongstthem.292 Justice Mitchell wondered if this seeming confusion onthe issue derived from a failure to recognize:

That the "injury" for which they seek to compensate the plaintiffsis the existence of a human life. As a result:

Although courts and commentators have attempted to make itsuch, wrongful birth is not an ordinary tort. It is one thing tocompensate destruction; it is quite another to compensate cre-ation. This so-called "wrong" is unique: It is a new and on-going condition. As life, it necessarily interacts with otherlives. Indeed, it draws its "injurious" nature from the predi-lections of the other lives it touches. It is naive to suggestthat such a situation falls neatly into conventional tort princi-ples, producing neatly calculable damages.293

The Azzolino court also recognized other problems inherent in therecognition of a claim for wrongful birth. Fraud would be of par-ticular concern for the claim would always hinge on the testimonyof the parents that they would have definitely chosen to terminatethe pregnancy had they known of the unborn child's impair-ments.2 94 Another concern was the ability of parents to decidewhich "defects" would have caused them to abort the child.295 TheAzzolino court wondered whether parents would be allowed torecover on a claim that they would have aborted had they knownthat their unborn child was one sex and they wanted the other, orthat the child carried a "deleterious gene" but was otherwiseunimpaired.296 These questions were viewed as especially perti-nent in light of the fact that federal case law guaranteed awoman's right to abortion for any reason before the point of viabil-ity.297 The upshot of this analysis was Justice Mitchell'sconclusion:

As medical science advances in its capability to detect geneticimperfections in a fetus, physicians in jurisdictions recognizingclaims for wrongful birth will be forced to carry an increasingly

292. Id. at 111-12, 337 S.E.2d at 533-34.293. Id. at 112-13, 337 S.E.2d at 534-35 (quoting Dierdre A. Burgman,

Wrongful Birth Damages: Mandate and Mishandling by Judicial Fiat, 13 VAL.

U. L. REV. 127, 170 (1978)).294. Azzolino, 315 N.C. at 113, 337 S.E.2d at 535.295. Id.296. Id.297. Id.

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heavy burden in determining what information is important toparents when attempting to obtain their informed consent for thefetus to be carried to term. Inevitably this will place increasedpressure upon physicians to take the "safe" course by recom-mending abortion .... Although it is not the controlling considera-tion in our rejection of claims for wrongful birth, we do not wish tocreate a claim for relief which will encourage such results.2 98

Justices Exum, Frye, and Martin dissented from the major-ity's opinion on the sole issue of the parents' wrongful birth claim,finding that such a claim should be recognized based on theweight of authority from other jurisdictions.

2. Wrongful Pregnancy / Conception

Again, North Carolina has examined this issue exactly onceat the supreme court level. The court of appeals, in Pierce v.Piver, 2 99 has ruled a plaintiff states a cognizable cause of action inNorth Carolina when alleging pregnancy as the injury. The Piercecourt, in a very terse opinion, simply stated the claim was one formedical malpractice sounding in tort and contract, and thus, theplaintiffs had adequately plead a cause of action.3 ° ° Judge Wellsconcurred with the majority to the extent the plaintiff couldlegally request recovery of fees paid to the defendant, the preg-nancy and delivery related expenses, and pain and sufferingrelated to the pregnancy and birth.30 1 There was no elaborationin the opinion regarding the rationale for recognizing such a causeof action, the issues raised by its recognition, or even that it was acase of first impression on the issue of whether pregnancy could belegally claimed to be an injury.

In Jackson v. Bumgardner, °2 the plaintiffs, a married couple,alleged medical malpractice on the part of the defendant doctorwho removed an intrauterine device (IUD) from the wife duringovarian cyst surgery, allowing her to become pregnant against thecouple's wishes.30 3 The couple had secured the defendant's assur-ances before the procedure was performed that he would replace

298. Id. at 114, 337 S.E.2d at 535.299. 45 N.C. App. 111, 262 S.E.2d 320 (1980).300. Id. at 113, 262 S.E.2d at 321-22.301. Id. at 113, 262 S.E.2d at 322.302. 318 N.C. 172, 347 S.E.2d 743 (1986).303. Id. at 174, 347 S.E.2d at 744-45.

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the IUD if it were ever necessary to remove it during surgery. 30

4

The wife delivered a healthy full-term baby.305

Justice Frye, writing for a unanimous court,30 6 found theissue before the court was "whether plaintiffs' complaint states aclaim recognizable in this State for medical malpractice andbreach of contract where the injury complained of is defendant'simproper failure to replace an intrauterine device, resulting inplaintiff wife's pregnancy and the consequent birth of a healthychild."3

17 Justice Frye approached the issue employing traditional

medical malpractice analysis °.3 0 Establishing that a duty is owedby a physician to a patient, and the extent of such duty underNorth Carolina law, the court found the facts of the case as allegedwere sufficient to make out a claim for malpractice. 30 9

The Jackson court bolstered its opinion by noting the vastmajority of courts to have considered the issue of wrongful concep-tion/pregnancy treated the claim exactly as it had - as indistin-guishable from an ordinary medical malpractice claim.3 10 Thedefendant owed the plaintiffs a legally recognized duty to abide bytheir wishes in maintaining the IUD in the wife's body, andbreached this duty when he failed to do so for no medically neces-sary reason, proximately causing the wife to become pregnant,with the resulting damage being the medical condition ofpregnancy.

311

The court in Jackson was quick to point out that, despitedefendant's urging to the contrary, the case was distinguishablefrom its decision in Azzolino on the issue of damages beingclaimed by the plaintiffs. Azzolino, the court opined, was a casewherein the injury claimed was the continued existence of thedeformed child. In the case at bar, the injury was the "fact of thepregnancy as a medical condition that gives rise to compensabledamages .... "312 The court also explicitly distinguished between

304. Id. at 174, 347 S.E.2d at 745.305. Id.306. Justice Martin concurred in the majority's holding that the couple could

sue for "wrongful conception" and dissented from the majority's holdings on theissue of damages and the contract claim.

307. Jackson, 318 N.C. at 174, 347 S.E.2d at 744.308. Id. at 178, 347 S.E.2d at 747.309. Id.310. Id. at 179, 347 S.E.2d at 747.311. Id. at 178, 347 S.E.2d at 747.312. Id. at 181, 347 S.E.2d at 748 (emphasis in original).

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cases alleging the defendant contributed to causing the pregnancyversus cases where the contraception method itself failed.313

Based on this tort law analysis, the Jackson court recognizedthe plaintiffs' claim of wrongful pregnancy/conception.314 Thenext issue was whether the husband, who had not been physicallyinvolved and could only be vicariously subjected to the medicalcondition of pregnancy, could collect damages for wrongful preg-nancy/conception.3 15

The Jackson court held the only allowable damages in a casefor wrongful pregnancy/conception were the costs associated withthe pregnancy, such as hospital and medical expenses of the preg-nancy, pain and suffering connected with the pregnancy, lostwages, and loss of consortium. 316 The court specifically rejectedany claims for damages associated with rearing the resulting childon the two-pronged theory that life could never be a legal injuryand such damages were too speculative to be legally allowed.317

The Fourth Circuit has weighed the issue of wrongful preg-nancy/conception as well. In Gallagher v. Duke University,31

' adiversity action applying North Carolina law, the federal appel-late court reviewed a case wherein the plaintiffs were the parentsof an unwanted child who was born with severe impairments.3 19

The impaired child also filed an action for wrongful life. The par-ents' claim was essentially one for wrongful pregnancy/conception.32 °

The Gallagher's first child, Jennifer, suffered from severeimpairments at birth and subsequently died a short time thereaf-ter.321 Dr. Mickey, a defendant, concluded Jennifer's impairmentswere not genetically based. With this assessment, the staff atDuke University Hospital advised the Gallaghers their chances of

313. Id. at 181, 347 S.E.2d at 749.314. Jackson, 318 N.C. at 182, 347 S.E.2d at 749.315. Id.316. Id. at 183, 347 S.E.2d at 749-50.317. Id. at 182-83, 347 S.E.2d at 749-50 (citing Azzolino and DiDonato).318. 852 F.2d 773 (4th Cir. 1988).319. Id.320. The federal district court had referred to the claim as one for wrongful

birth. It is difficult, without the complaint, to know which is really moreaccurate. Given the facts and allegations described by the appellate court, theclaim sounds more like one for wrongful conception as it is defined by NorthCarolina law.

321. Gallagher, 852 F.2d at 774-775.

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having a normal baby was the same as the general population.3 22

The staff also advised the plaintiffs that it was not necessary forthem to be genetically tested given the negative results of Jen-nifer's tests. Based on this information, the couple became preg-nant and was advised by the University of North Carolina GeneticCounseling Department that no amniocentesis was necessarybased on Jennifer's test results.3 23

The second Gallagher child, Lisa, was born with severeimpairments very similar to those of Jennifer. After additionalgenetic testing, it was determined that Mr. Gallagher carried adefective gene which had caused the impairments in both Jenniferand Lisa.

The parents sued, alleging they would not have conceivedLisa had they known of the genetic defect.3 24 They prayed forrecovery of the extraordinary expenses of caring for Lisa for therest of her life, the loss of Lisa's future earnings, and for their ownemotional distress.3 25 The district court allowed the wrongful con-ception claim and awarded damages on the extraordinary medicalexpenses that would be incurred during the parents' lifetimes.326

It denied damages for emotional distress and dismissed Lisa Gal-lagher's wrongful life claim2

The sole issue on appeal was "[d]id the district court err inconcluding that a claim for relief for the wrongful birth of a geneti-cally defective child is cognizable under North Carolina Law?"328

The Gallagher court's analysis began with an examination ofNorth Carolina law as expressed by Jackson v. Bumgardner.329

Based on Jackson, the Gallagher court found a cause of action hadbeen recognized in North Carolina for wrongful conception of ahealthy child.3 3 0 Given the Jackson court's analysis, the federalcourt in Gallagher concluded North Carolina would also recognize

322. Id. at 775.323. Id.324. Id. The court does not indicate the couple alleged the defendants were

also negligent in not diagnosing Lisa's impairments in utero through the use ofamniocentesis and that they would have aborted her had they known of theimpairments.

325. Gallagher, 852 F.2d at 775.326. Id.327. Id.328. Id.329. 318 N.C. 172, 347 S.E.2d 743 (1986).330. Id.

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a wrongful conception cause of action when the product of concep-tion is an impaired child.3 3 '

The Gallagher court turned next to the question of what con-stituted the proper measure of damages in such a case. Again con-sulting Jackson, the court noted North Carolina did not allowrecovery for child rearing expenses in a wrongful conception casewhen the unwanted child was born healthy. The rationale for thisrule was the Jackson court's reliance on its prior decision inAzzolino v. Dingfelder which held that "life, even life with severedefects, cannot be an injury in the legal sense."332 The court alsoheld that the Jackson court had found the "recovery of the costs ofrearing a normal child should not be allowed because of the diffi-culty of determining the value of the offsetting benefits from thechild's life."33 3

The court proceeded to distinguish the case at bar from thefacts in either Jackson or Azzolino on the basis that the casepresented no problem of trying to offset the costs of child rearingwith the benefits of having a child because "[n]o evidence of bene-fits was introduced. Lisa was profoundly impaired."33 4 Nor wasthe jury shouldered with the burden of speculation on such dam-ages because "[tihe court's charge did not require the jury toattempt to offset the extraordinary costs of caring for Lisa by anybenefits. 3 35 Based on the nature of Lisa's impairments, the courtheld North Carolina courts would not attempt to apply any type ofoffset analysis to such a case. 36 Accordingly, the court concludedLisa's case did not present the same "fatal calculation problemthat Jackson discussed. 33 7

The Gallagher court moved to the question of whetherAzzolino would preclude the Gallaghers' cause of action and dam-ages. Judge Butzner simply recited the facts of that case and itsholding. He then noted the Jackson court's refusal to dismiss theJacksons' claim in lieu of Azzolino, based on the differencesbetween the nature of the claims being made in the two cases. 338

331. Gallagher, 852 F.2d at 776.332. Id. (quoting Azzolino v. Dingfelder, 315 N.C. 103, 109, 111, 337 S.E.2d

528, 532, 534 (1985), cert. denied, 479 U.S. 835 (1986)).333. Id. See infra notes 358-72 and accompanying text regarding the court of

appeals' liberal interpretation of this holding in Jackson.334. Gallagher, 852 F.2d at 776.335. Id. at 777.336. Id. See infra notes 358-72 and accompanying text.337. Gallagher, 852 F.2d at 777.338. Id. (citing Jackson, 318 N.C. at 180-81, 347 S.E.2d at 748).

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The Gallagher court concluded the Gallaghers' claim was forwrongful conception, not wrongful birth, despite the districtcourt's reference to it as such. 339 Accordingly, the court opinedthat the differences between Mrs. Azzolino's claim and Mrs. Jack-son's claim applied to the Gallagher's claim and, thus, their claimfor wrongful conception was not barred.34 °

The court in Gallagher then held that neither Azzolino norJackson, alone or taken together, barred the Gallaghers' claimsfor the extraordinary expenses of Lisa's care, and upheld the dis-trict court's judgment allowing such damages to be awarded.3 41

The court denied the Gallaghers' claim for extraordinary expensesLisa would incurr after their deaths, as the claim they were mak-ing was theirs, not hers. Based on the strength of Ledford v. Mar-tin342 and Johnson v. Ruark Obstetrics & Gynecology Associates,P.A. , the court in Gallagher allowed their claim for emotionaldistress.34 4

C. Analysis

A full discussion of the issues, arguments, policies and trendsdriving the law of wrongful life, birth, and pregnancy/conceptionlitigation is well beyond the scope of this Article. Accordingly, thefocus of this analysis section will be on what the law in these areasappears to be in North Carolina as of the date of this Article.

1. Wrongful life/birth

Azzolino makes it very clear there is no cause of action inNorth Carolina for wrongful life or wrongful birth as those actionsare defined in that case. Gallagher obstensibly has no effect onthe availability of either of these actions, as it dealt with a wrong-ful conception. Although Azzolino presented only one factual sce-nario under which a claim for wrongful life was being made,345 it

is very likely the court would reach the same conclusion withregard to any claim based on an assertion the injury suffered by

339. Id. at 777-78.340. Id.341. Id. at 778.342. 87 N.C. App. 88, 359 S.E.2d 505 (1987), discretionary review denied, 321

N.C. 473, 365 S.E.2d 1 (1988).343. 327 N.C. 283, 395 S.E.2d 85 (1990).344. Gallagher, 852 F.2d at 778.345. E.g., but for defendant's negligence, the plaintiff's parents would have

aborted him.

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the plaintiff is existence versus non-existence, or in essence, thatthe person would have been better off dead.346

The same is true of any claim for wrongful birth based on theassertion the parents would have aborted but for the negligence ofthe defendant. This is so because the court has tied wrongfulbirth and wrongful life claims together with a common fatalthread - both require analysis which views human existence asan injury.347 Thus, any action before the court claiming damagesthat arise "from the failure of the defendants to take steps whichwould have led to abortion of the already existing and defectivefetus,"348 is likely to fail. The status of the law is unlikely tochange in the near future, unless such change comes from the leg-islature, given the Azzolino court's holding that absent clear leg-islative guidance to the contrary it would not recognize suchcauses of action.349

The court in Azzolino did not deal with the issue of whetherits holding would deny parents their constitutionally protectedright to control their reproduction. The Ohio Supreme Court hasheld a cause of action brought by parents of a child born subse-quent to a negligently performed sterilization procedure on themother was not barred by public policy because the choice to pro-create is part of one's constitutionally protected right to privacy,and a court's endorsement of a judicial policy that subjects physi-cians to liability for malpractice in other areas, but denies suchliability in those areas involving sterilization, constitutes animpermissible infringement of a fundamental right.35 °

Other courts have approached this question with the pre-sumption parents have a constitutional right to prevent the birthof a defective child and, accordingly, health care providers have acorrelating duty to do what is necessary to enable parents to exer-

346. See the Azzolino court's holding that "life, even life with severe defects,cannot be an injury in the legal sense." Azzolino v. Dingfelder, 315 N.C. 103, 109,337 S.E.2d 528, 532 (1985), cert. denied, 479 U.S. 835 (1986).

347. See Azzolino, 315 N.C. at 109-11, 337 S.E.2d at 532-34.348. Azzolino, 315 N.C. at 111, 337 S.E.2d at 534. This would include claims

for failure to diagnose genetic or other congential disorders before birth,negligent sterilization, negligent abortion, or any other scenario making thisclaim.

349. Azzolino, 315 N.C. at 109, 116, 337 S.E.2d at 532, 536.350. Bowman v. Davis, 356 N.E.2d 496 (Ohio 1976).

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cise that right.351 There is, however, no recognized fundamentalright not to be born.3 52

The notion that parents have a privately enforceable right tobe free from the negligence of health care providers, supposedlyrooted in federal reproductive jurisprudence, raises a multitude ofissues on several different legal planes. Suffice it to say NorthCarolina has not addressed the issue, and at present no cause ofaction for wrongful life or birth is recognized on this or any otherbasis.

A cause of action for wrongful pregnancy/conception is recog-nized in North Carolina on the basis of Jackson v. Bumgardner.353

Such an action, viewed by the court as nothing more than a medi-cal malpractice claim, 354 is defined by the facts of that case. Thus,where: (1) a plaintiff alleges her physician owed a duty to give careand counseling with regard to her reproductive functioning in amanner consistent with accepted medical standards, and, (2) thephysician breached that duty (failed to diagnose genetic defectsprior to conception, properly perform sterilization procedure, etc.),and , (3) as a direct result of such breach an unwanted pregnancyoccurred, resulting in pain and suffering, medical expenses, lostwages, and loss of consortium-all associated with childbirth-she states a legally recognized cause of action in North Carolina.There is no requirement that the resulting child be impaired. Thecrux of the claim is that the alleged malpractice resulted in theinjury of being pregnant. 355

It is important to distinguish terms at this point. Courts havetended to use the terms wrongful conception and wrongful preg-nancy interchangably when there is a technical differencebetween the two. Wrongful conception should be used to denote

351. See, e.g., Harbeson v. Parke-Davis, Inc., 656 P.2d 483 (Wash. 1983).352. See Miller v. Duhart, 637 S.W.2d 183 (Mo. Ct. App. 1982).353. 318 N.C. 172, 347 S.E.2d 743 (1986).354. The use of the medical malpractice paradigm in Jackson was simply a

function of the facts involved in that particular case. A wrongful conceptionaction should be possible in any sitution where it can be alleged the injury is themedical condition of pregnancy. A situation where a sex partner lies about theirfertility which results in pregnancy is but one example that is outside of themedical malpractice realm. See Anne M. Payne, Annotation, Sexual PartnersTort Liability to Other Partner for Fraudulent Misrepresentation RegardingSterility or Use of Birth Control Resulting in Pregnancy, 2 A.L.R. 5th 301 (1992);62A Am. JuR. 2D Prenatal Injuries; Wrongful Life, Birth, or Conception § 1-180(1990).

355. Jackson, 318 N.C. at 181, 347 S.E.2d at 748.

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any claim wherein the injury claimed is becoming pregnant.Thus, by definition, it involves only pre-conception negligence.Wrongful pregnancy, on the other hand, more accurately denotesnegligence in terminating an already existing pregnancy. Thisinvolves post-conception negligence. Wrongful pregnancy is dis-tinguished from wrongful birth on the basis that the latter claimsas the injury the fact that an impaired child was allowed to beborn where, but for the negligence of the defendant, it would havebeen aborted. Wrongful pregnancy claims as the injury the factthat any child was born, whether impaired or healthy. 5 6 Thecause of action recognized in Jackson is more accurately calledwrongful conception.

2. Damages

The question of what damages are available to a plaintiffasserting a cause of action for wrongful conception is where thepicture starts to haze. The fog is created by the Fourth CircuitCourt of Appeals' decision in Gallagher v. Duke University.357 InJackson, the North Carolina Supreme Court held the only recov-erable damages in such cases were those associated with the preg-nancy, such as the hospital and medical expenses of thepregnancy, pain and suffering connected thereto, lost wages, andloss of consortium.358 The Jackson court also explicitly held plain-tiffs could not recover for the costs of rearing their (unexpected)child. 59

The Jackson court based its denial of the child rearing costson two tenets.3 60 The first was its belief that the rationale andholding of its prior decision in Azzolino would prohibit such recov-ery.3 61 The second was the court's unwillingness to impose onjuries the task of offsetting the benefits from the child's lifeagainst the expense of raising him, because the results would nec-essarily be based on speculation and conjecture - "Who, indeed,can strike a pecuniary balance between the triumphs, the failures,the ambitions, the disappointments, the joys, the sorrows, thepride, the shame, the redeeming hope that the child may bring to

356. See 62A Am. JuR. 2D Prenatal Injuries; Wrongful Life, Birth, orConception §§ 89-94 (1990).

357. 852 F.2d 773 (4th Cir. 1988).358. Jackson, 318 N.C. at 182, 347 S.E.2d at 749.359. Id.360. Id.361. Id.

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those who love him?"3 62 Thus, the state's highest court has statedas a matter of law a plaintiff bringing an action for wrongful con-ception cannot collect child rearing expenses as damages.

In Gallagher v. Duke University, the Fourth Circuit Court ofAppeals, however, held the exact opposite to be true where theunwanted child was born with significant impairments.363 Thecourt correctly interpreted Jackson to allow a wrongful conceptionclaim where the resulting child was not born healthy.364 Thecause of action does not regard the health of the resulting child asrelevant. The crucial point, according to Jackson, is that the med-ical condition of pregnancy is the injury that characterizes thewrongful conception action. Thus, it follows that even a plaintiffwho becomes pregnant due to the defendant's negligence and thenproceeds to abort the child can state a cause of action for wrongfulconception to recover the cost of the abortion, as well as any otherdamages within the ambit of those provided for in Jackson.365

The federal court's finding in Gallagher regarding child rear-ing damages is not in line with Jackson and should be viewed withgreat suspicion. The problem with the federal court's analysisbegins with its characterization of the rationale used by the Jack-son court to disallow such damages. In Gallagher, Judge Butznerfirst stated the court "held... that the Jacksons could not recoverthe costs of rearing their healthy baby."3

16 He then states "[t]he

Court also reasoned that recovery of the costs of rearing a normalchild should not be allowed because of the difficulty of determin-ing the value of the offsetting benefits from the child's life."367

This is inaccurate. Nowhere did the Jackson Court make the dis-tinction, either expressly or impliedly, between a normal child andone with impairments. This mischaracterization of part of Jack-son's rationale for denying child rearing expenses was used by thefederal court in Gallagher to create an artificial distinction - ahealthy child versus an impaired one-- and the court proceeded

362. Id. at 183, 347 S.E.2d at 750 (quoting Miller v. Johnson, 343 S.E.2d 301,307 (Va. 1986)).

363. Gallagher v. Duke Univ., 852 F.2d 773 (4th Cir. 1988).364. Id. at 776.365. See Beardsley v. Wierdsma, 650 P.2d 288 (Wyo. 1982) (damages awarded

for cost of abortion, mother's pain and suffering, and mother's lost wages); JACOBA. STEiN, DAMAGES AND RECOVERY: PERSONAL INJURY AND DEATH ACTIONS

§ 221.1 (Supp. 1990).366. Gallagher, 852 F.2d at 776.367. Id. (emphasis added).

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to disregard clearly controlling authority to make a holding con-trary to the existing law of North Carolina.

Based on this distinction, the Gallagher court stated that,unlike the healthy child in Jackson, Lisa Gallagher's conditionpresented no problem of trying to offset child rearing costs 368 withthe benefits of parenthood because she was profoundlyimpaired. 36 9 The clear implication is the court sees Lisa Gal-lagher as so impaired as to be utterly worthless to her parents interms of giving them affection, joy, moral courage, etc. It is repre-hensible that a court would be willing to make such an assess-ment as a matter of law. As the Virginia Supreme Court stated inMiller v. Johnson, and cited in Jackson, who indeed can strikesuch a balance?370 Certainly not judges who have never seen thechild.

Nor should a child's ability to be of "value" to its parents havebeen in question in Gallagher to begin with. The North CarolinaSupreme Court had clearly held there were two reasons not toallow child rearing damages. Child rearing damages are by defini-tion compensation for the pecuniary cost of the existence of thechild. Azzolino held human existence, even life cursed with severeimpairments, could never be an injury in the legal sense.371 TheGallagher court never addressed this first reason, and Azzolinowould not allow such damages to be awarded. Secondly, thesupreme court in Jackson held child rearing damages, whether fora healthy child or for one suffering "severe defects," were not to beallowed.372 The federal court's finding to the contrary violates theplain language and spirit of the law stated in both Azzolino andJackson, and should be regarded as nothing more than peripheralby North Carolina courts.

One issue which has not been addressed by any courts ofjurisidiction in North Carolina is mitigation of damages. Given awrongful conception action complains the medical condition ofpregnancy is the injury, the question arises whether the mothermust mitigate her damages by obtaining an abortion or by placing

368. The court also employs subtle word changes in this part of its analysis,referring to child rearing expenses, the term used in Jackson, as "costs of care,"which tends to reinforce its distinction between the healthy and impairedchildren. Id.

369. Gallagher, 852 F.2d at 778.370. See Miller v. Johnson, 343 S.E.2d 301, 307 (Va. 1986).371. Azzolino, 315 N. C. at 109, 337 S.E.2d at 532.372. Jackson, 318 N.C. at 180, 347 S.E.2d at 748.

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the child up for adoption. This issue would also apply in the con-text of an action claiming violation of the plaintiffs right to con-trol her own reproduction. The violation would end with theabortion. The Jackson court noted the wrongful conception claimarose out of traditional tort analysis and was no different than anyother medical malpractice claim.373 Would it not follow that aplaintiff must do all she could to mitigate her damages, as this is abasic tenet of tort law?3 74 This question becomes particularly sig-nificant when discussing whether parents should be able torecover child rearing expenses.

Few courts have broached the issue, but the general rule thathas emerged from those which have is there is no such mitigationrequirement.375 While most of these cases deal with the issue inthe context of a wrongful birth claim, it follows that the samerationales would apply in the wrongful conception context aswell.3 76 Also, there is the question of whether the overall publicpolicy goal to protect human life would be violated by a tort policyrequiring abortion.377

373. Id. at 179, 347 S.E.2d at 747.374. See 25 C.J.S. Damages § 3.3 (1966); Smith v. Childs, 112 N.C. App. 672,

437 S.E.2d 500 (1993).375. See 62A AM. JuR. 2D Prenatal Injuries; Wrongful Life, Birth, or

Conception § 119 n.92 (1990).376. See Smith v. Cote, 513 A.2d 341 (N.H. 1986) (noting that unwillingess to

apply "avoidable consequenes" rule, which would require placing child foradoption, was reason why only extraordinary medical and educational expensesand not normal child-raising expenses were allowed in wrongful birth cases);Kingsbury v. Smith, 442 A.2d 1003 (N.H. 1982) (indicating that one reason fordenying child-raising expenses in wrongful conception cases was to avoid puttingupon parents "the awesome choices of having an abortion or putting the child upfor adoption as a course of mitigating damages"); Comras v. Lewin, 443 A.2d 229(N.J. Super. Ct. App. 1982) (fact that abortion was diagnosed in second trimesterdid not preclude plaintiff from recovering for birth of defective child, even thoughher theory of recovery was based on fact that with earlier diagnosis she wouldhave had an abortion, since effect of delayed diagnosis was to increase risks ofabortion); Miller v. Johnson, 343 S.E.2d 301 (Va. 1986) (noting, in rejecting child-rearing expenses for birth of healthy baby, that contrary ruling might raise issuewhether plaintiff should have submitted to abortion or placed child for adoption).

377. For a general discussion of the view a duty to mitigate may exist, see 62AAM. JuR. 2D Prenatal Injuries; Wrongful Life, Birth, or Conception § 121 (1990).

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IX. OTHER PERTINENT AREAS OF THE LAW

A. Fetus' right to assert federal civil rights claims under 42U.S.C. § 1983

The question of whether a fetus is a "person" capable of stat-ing a claim under the federal civil rights statute has arisen mainlyin the context of an action to collect welfare benefits. Pregnantmothers with no other children have claimed a violation of theirunborn child's civil rights under 42 U.S.C. § 1983. The generaltrend has been to deny such claims on the premise an unbornchild is not a "person" under the Fourteeth Amendment of theConstitution, v8 and thus cannot state a claim for violation ofrights arising under that Amendment. 79 Some federal courts,however, have held to the contrary and allowed section 1983claims asserted by unborn children.3 0 The Fourth Circuit Courtof Appeals affirmed an unborn child could state a section 1983claim for denial of equal protection in a class action case in Vir-ginia seeking Aid for Families with Dependant Children benefitsfor unborn children.38 ' Therefore, plaintiffs in North Carolinamay be able to pursue other types of section 1983 claims on behalfof unborn children, such as an action against a law enforcementofficer who injures an unborn child during an attack on itsmother.38 2

B. Unborn Children and Insurance Law

North Carolina courts have not dealt with this subject as ofthe date of this Article, but it is likely they will in the near future.In the mean time, insurers and insureds would be wise to considerthe issue of whether an unborn child is an "insured" or "injured"person under various insurance policies. Given North Carolina'srecognition of an unborn child as a "person" in the wrongful deathand prenatal injury contexts, the question is certainly one that isopen for debate. Both sides will need to consider the issue of via-bility as well.

378. See Roe v. Wade, 410 U.S. 113 (1973).379. See generally Richard P. Shafer, Annotation, Fetus as Person on Whose

Behalf Action May Be Brought Under 42 U.S.C.S. § 1983, 64 A.L.R. FED. 886(1983).

380. Id.381. Doe v. Lukhard, 493 F.2d 54 (4th Cir. 1974), vacated, 420 U.S. 990 (1975).382. See Douglas v. Hartford, 542 F. Supp. 1267 (D. Conn. 1982).

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Suprisingly, the issue of whether an unborn child is coveredby the language of a particular insurance policy has reached theappellate courts only a few times. 8 3 Of the three courts that haveconsidered the issue, two have considered viability a crucial issue,while the third explicitly rejected viability as a determinativetest.38 4 The Fourth Circuit Court of Appeals has not addressedthis issue.

C. Workers' Compensation and the Unborn Child

North Carolina also has not addressed the issue of how itsworkers' compensation statute would apply to the unborn child.The primary question would be whether a work-related injury suf-fered by the child's mother which also injured the child wouldrequire the unborn child to proceed under the exclusive remedyprovisions of the Workers' Compensation Act.38 5 Only Texas andLouisiana have decided this issue, with each holding the exclusiv-ity provisions of their state's workers' compensation acts did notpreclude an action for the wrongful death of an unborn child.3 8

Another issue arising under workers' compensation law iswhether a mother may maintain a cause of action for emotionaldistress against her employer for the death of her child resultingfrom an on-the-job injury. Johnson v. Ruark Obstetrics & Gyne-cology Associates, P.A., 38 7 and Ledford v. Martin38 8 allow a motherto assert a civil cause of action for emotional distress connnectedwith the wrongful death or injury of her unborn child. The Work-ers' Compensation Act, however, is silent on this issue and its defi-nition of "injury"3 9 is so broad as to be ambiguous on whether a

383. See generally Wanda Wakefield, Annotation, Unborn Child as Insured orInjured Person Within Meaning of Insurance Policy, 15 A.L.R. 4th 548 (1982).

384. Id.385. Chapter 97 of the General Statutes of North Carolina denotes the Act.

Section 97-10.1 provides the Act is the exclusive remedy for an employee injuredon the job. An employee cannot file a civil claim in a court of general jurisdictionfor pain and suffering, medical expenses, permanent injuries, etc., if the injuryoccurred while working for an employer covered by the Act, unless the injuryfalls under an exception thereto (intentional act).

386. Witty v. American Gen. Capital Distribs., Inc., 697 S.W.2d 636 (Tex. Ct.App. 1985), aff'd in part and rev'd in part, 727 S.W.2d 503 (Tex. 1987); Adams v.Denny's Inc., 464 So. 2d 876 (La. Ct. App. 1985), cert. denied, 467 So. 2d 530 (La.1985).

387. 327 N.C. 283, 395 S.E.2d 85 (1990).388. 87 N.C. App. 88, 359 S.E.2d 505 (1987), discretionary review denied, 321

N.C. 473, 365 S.E.2d 1 (1988).389. See N.C. GEN. STAT. § 97-2(6) (1991 & Supp. 1994).

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court would include this scenario within its rubric. Nationally,only one case has decided this issue. That case held an employee'sclaim for mental anguish suffered after loss of her fetus due to awork-related injury was barred under the state's workers' com-pensation act because her mental anguish arose out of the work-related injury, and there was no basis for making a distinctionbetween such an injury and any other injury covered by the act.3 90

D. Property Law and the Unborn Child

The law of property has long recognized the unborn child as alegal entity for the purposes of inheritance. Given the well-estab-lished character of the law in this area, it warrants only briefmention here. In North Carolina an unborn child is deemed a per-son capable of taking by deed, or other writing, any estate in thesame way as if he were born.3 9 1 This right attaches at concep-tion.392 The granting of "legal personality" is imputed to theunborn child for beneficial, but not detrimental purposes. 9 3

X. THE STATUS OF THE FETUS IN NORTH CAROLINA: ANSWERING

"THE QUESTION"

It is difficult to say what the status of the fetus is in NorthCarolina. While there is some case law and several statutes onthe subject, there is an overall paucity of law - case or statutory- that defines the legal status of the fetus. The law that doesexist is inconsistent. For example, consider the question of "Is afetus a 'person?'" North Carolina's constitution has been inter-preted to say a fetus is not a "person."394 Conversely, the Wrong-ful Death Act's use of the word does include a viable fetus. 95

North Carolina common law views the fetus, regardless of viabil-ity, as a person capable of bringing a tort claim for injuries suf-fered before birth.39 6 The State's property law views the fetus as aliving child capable of inheriting, and its procedural law recog-nizes the fetus as a being for which a guardian ad litem can be

390. Witty v. American Gen. Capital Distribs., Inc., 727 S.W.2d 503 (Tex.1987).

391. See N.C. GEN. STAT. § 41-5 (1984).392. Mackie v. Mackie, 230 N.C. 152, 52 S.E.2d 352 (1949).393. Id.394. State v. Stare, 302 N.C. 357, 275 S.E.2d 439 (1981).395. DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987).396. Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

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appointed as a necessary party to a lawsuit.3 9 7 A defendant canbe fined and sentenced up to ten years for the crime of killing a"quickened" fetus, but a fetus is not a "person" under the state'smurder statute.

Thus, a fetus has a different status in different areas of thelaw of North Carolina. How can this be? Is not an unborn childalways an unborn child? How can a child have legally enforceablerights in one context and be seen as nothing more than a lump ofmeaningless tissue in the next? The question of how the presentlaw has evolved is nothing more than an exercise in legal scholar-ship tracing the origins of common and statutory law. The moreimportant question is the one that must be resolved in the mindsof society and in the law: In the course of human development,from conception forward, when does one become a "person" enti-tled to the same rights and status under the law as every other"person" in that society (hereinafter "The Question")? Some wouldsay this is really a question about when "life" begins. No matterhow one frames the question, the answer sought is the same. Isan unborn child a "person" from the time he is conceived, or some-time later in his gestational development? Is he a "person" at allbefore he is born? These questions are quickly followed by othersequally important. If a child is a "person" at viability but notbefore, why? What characteristics does a viable child possess tomake it "worthy" of being deemed a "person" that a nonviablechild does not? The answers to these and other questions havebroad reaching implications for other areas of law in a society. If achild is a "person" at viability, but not before, based on some mea-sure of cognitive ability or a checklist of bodily parts, the fifty yearold woman who has lost all real cognitive ability through diseaseor who was born without some of the body parts on such a list willneed to know if she is still considered a "person."

Inconsistency in state law is difficult enough to resolve, butthe questions become incredibly more complicated when federalabortion law is thrown into the mix. If society recognizes theunborn child as a "person" at conception, then a woman's right toan abortion would necessarily be outweighed by that "person's"right to life. As the law stands, a woman is legally allowed to takethe life of her unborn child anytime before viability. Anyone else

397. See N.C. GEN. STAT. § 1A-I, Rule 17(b)(4) (1990 & Supp. 1994). For acomplete review of applicable North Carolina law on these subjects, seeAppendix A.

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who does the same thing at any point after quickening will beimprisoned for ten years.

Many are content with such inconsistency. It is not uncom-mon for different areas of the law to develop in divergent direc-tions with regard to a common issue. The problem here, however,is the magnitude of "The Question" is far beyond any that hasbeen asked in the law to date. Some contend such a question can-not be answered by the law - it is one for philosophers and reli-gion to answer. The harsh reality is that advances in reproductivetechnology will force the law to answer "The Question" in the nearfuture.

In what seems like science-fiction based scenarios, scientistsin laboratories around the world are working on ways to duplicateand create human beings. In vitro fertilization, the process of con-ceiving a human child in a test tube, is a common practice. Creat-ing several human embryos at one time for implantation into ahopeful mother has brought about the freezing of embryos for longperiods of time. In the next year, doctors will be able to removethe microscopic eggs of a baby girl and preserve them to be fertil-ized and then implanted into her womb whenever she is ready tohave children, be it age 35 or 65. Goat eggs are being fertilized intest tubes and placed in a stasis tank for the normal gestationalperiod, yielding mammals that have never lived inside another.Scientists have successfully "cloned" human embryos. Work isbeing done to allow the transfer of a fetus from one womb toanother.

The development of such incredible technology brings oneback to "The Question" at a startling rate. The scientific commu-nity has already begun the struggle to determine whether ahuman embryo can be used in experiments. Our courts have justbegun to understand the incredible difficulty in deciding whethera frozen human embryo is property, a child, or something else.398

What is the difficulty and why the struggle? No one wants toanswer, at least in the legal sense, "The Question." If the answerto "The Question" was that one became a "person" at conception,there would be no debate over these issues. It would be unthink-able to allow destructive experimentation on "people," and a "per-son" who is a child would have custody disputes decided accordingto existing law.

398. See, e.g., Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied, 113 S.Ct. 1259 (1993).

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Even if no one is ready to answer "The Question," the lawshould begin to consider the effect of inconsistent results withregard to the status of the fetus. A hypothetical serves to demon-strate the problem. In California, the court of appeals has heldthe state's homicide statute, which states it is murder to inten-tionally kill a "fetus,"39 9 applies to a nonviable fetus.4 ° ° In thesame year, the California Supreme Court held a surrogate motherwho had not contributed any genetic material to the creation of achild she carried to term, was a "genetic stranger" to the child and,thus, had never had any parental rights to him.40 1 An interestinghypothetical situation thus arises. Assume a couple entered into asurrogacy contract with a woman who met existing legal criteria,and in the agreement the surrogate agreed to give up all constitu-tional rights with regard to abortion. The surrogate is impreg-nated with an embryo to which she contributed no gamete and isthus a "genetic stranger" to the unborn child. She carries thechild for the first trimester and decides she wants out of the agree-ment and no longer wishes to carry the child to term. She obtainsan abortion. Has the surrogate committed homicide in killing afetus to which she has no parental rights and for which she has noconstitutional right to abort? Is her action to be considered noth-ing more than breach of contract? If the jurisdiction recognizedactions for prenatal injury and wrongful death of children inutero, would the couple whose gametes created the child havestanding to bring either action? Currently, in California, thereare no answers to any of these questions, and it is doubtful anycourt is anxious to attempt to formulate any.

A call for an answer to "The Question" is not a call for chaos oranarchy in the law. It is not even a call for a dramatic departurefrom existing trends in the law. It is no more than a realizationthat the law must begin to take a realistic approach to dealingwith the medical fact that a fetus is no longer a mysterious move-ment in a mother's womb. The current law addressing fetal issuesis based on archaic assumptions and on inaccurate information.The court in Roe v. Wade402 cited the common law and the intentof the authors of the Fourteenth Amendment in ruling that a fetus

399. Apart from legal abortion.400. People v. Davis, 15 Cal. App. 4th 690, review granted and opinion

superseded by, 857 P.2d 1098 (Cal. 1993), and aff'd, 872 P.2d 591 (Cal. 1994).401. Johnson v. Calvert, 851 P.2d 776 (Cal. 1993), cert. denied, 114 S. Ct. 206,

and cert. dismissed, 114 S. Ct. 374 (1993).402. 410 U.S. 113 (1973).

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was not a "person" within that document's meaning.4 °3 The NorthCarolina Supreme Court cites the same type of rationale to find anunborn child is not a "person" within the meaning of the state'sconstitution.40 4 The fact is, however, both the developers of theancient common law rules still in use in much of American lawand the writers of both the United States and North Carolina Con-stitutions had no idea an unborn child could be completely distin-guished from any other human being on the planet from themoment of conception. Nor did they know a child of ten weeksgestation has a beating heart and a measurable brain wave.Surely these people would have been amazed to see the picturesthat are now common fare in books and magazines, showing a tinychild in the womb, sucking his thumb. No matter how one viewsthe "correct" answer to "The Question," such an answer must bearrived at .after an honest examination of the facts. The factsavailable to this earlier generation of law makers painted a signif-icantly different picture of what a fetus "is" before birth than thepicture painted today by those responsible for much of the currentlaw.

North Carolina has made no attempt to answer "The Ques-tion." No case or piece of legislation has yet addressed the issuesof surrogate parenthood, in vitro fertilization,40 5 criminal culpabil-ity of mothers who abuse drugs while pregnant, fetuses asinsureds under insurance contracts, frozen embryos, cloning, orany of a host of other issues concerning the legal status of a fetus.The legislature should forgo shortsightedness and begin to debatesuch issues now. Conflicts and inconsistencies in fetal law shouldbe resolved definitively by legislation. Answering "The Question"would be a good place to start.

403. Id.404. See State v. Stam, 302 N.C. 357, 275 S.E.2d 439 (1981).405. See Roger B. Bernholz & G. Nicholas Herman, Legal Implications of

Human In Vitro Fertilization for the Practicing Physician in North Carolina, 6CAMPBELL L. REV. 5 (1984).

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APPENDIX A

Recognized in Fetus a Viability Types ofN.C.? "person?" required? Damages

Allowed

WRONGFUL

DEATH(DiDonato v.Wortman;N.C.G.S. § 28A-18-2)

PRENATAL

INJURIES

(Stetson v.Easterling)

WRONGFUL LIFE

(Azzolino v.Dingfelder)

WRONGFUL

BIRTH(Azzolino v.Dingfelder)

WRONGFUL

CONCEPTION

(Jackson v.Bumgardner;Gallagher v.Duke (federal))

YES(Supreme Courthas notspecificallyimposed thisrequirement)

YES(this issue wasnot reached bythe court, it ispresumed to betrue based onthe court'slanguage)

Not decided

YES

Pain andsufferingMedical andfuneralexpensesNominaldamagesPunitivedamages

All damagesavailable in anormal tortaction

Not decided None

Not decided Not decided None

Not decided Not decided Related to thepregnancy: painand suffering,medicalexpenses, lossof consortium,lost wages.(Possilby childrearingexpenses incase whereresulting childis bornimpaired)

CRnNAL LAW

PROPERTY LAWN.C.G.S. § 41-5

YES. NON.C.G.S. § 14.44NO.N.C.G.S. § 14-17

YES - able to Undecidedinherit or takeby deed

NO.Quickeningrequired forN.C.G.S. § 14-44.

Penalty: Fine,imprisonmentup to 10 years(Class Hfelony), or both.N.C.G.S. 14-44.

242

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1995] LEGAL STATUS OF A FETUS 243

BIBLIOGRAPHIC CATEGORIES

1. REPRODUCTIVE TECHNOLOGY

A. AM. JUR.

61 AM. JuR. 2D Physicians, Surgeons, and Other Healers§ 163 (1981).

63 AM. JUR. 2D Products Liability §§ 719, 720 (1972).

B. PUBLICATIONS/ARTICLES

ARDITTI ET AL.,TEST-TUBE WOMEN (1984).

ANDREA BONNICKSEN, IN VITRO FERTILIZATION: BUILDING

POLICY FROM LABORATORIES TO LEGISLATURES (1989).

GENA COREA, THE MOTHER MACHINE: REPRODUCTIVE

TECHNOLOGIES FROM ARTIFICIAL INSEMINATION TO

ARTIFICIAL WOMBS 180 (1985).

REBECCA DRESSER, SOCIAL JUSTICE IN NEW REPRODUCTIVE

TECHNIQUES, GENETICS & THE LAW 159 (1985).

H. HOLMES ET AL., THE CUSTOM-MADE CHILD (1981).

MICHAEL H. SHAPIRO & Roy G. SPECE, JR., CASES,

MATERIALS AND PROBLEMS ON BIOETHICS AND LAW 522(1981).

PETER SINGER & DEANE WELLS, MAKING BABIES: THE NEW

SCIENCE AND ETHICS OF CONCEPTION 74-75 (rev. ed. 1985).

PETER SINGER & DEANE WELLS, THE REPRODUCTIVE

REVOLUTION: NEW WAYS OF MAKING BABIES 168 (1984).

MARY ANN WARREN, GENDERCIDE: THE IMPLICATIONS OF

SEX SELECTION (1985).

Lori B. Andrews, Regulation of Experimentation on theUnborn, 14 J. LEG. MED. 25 (1993).

Lori B. Andrews, The Stork Market: The Law of the NewReproduction Technologies, 70 A.B.A. J. 50 (1984).

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George J. Annas, Contracts to Bear A Child, 11 HASTINGS

CENTER REP., 23-24 (1981).

George J. Annas, Redefining Parenthood and ProtectingEmbryos, 14 HASTINGS CENTER REP. 50-52 (1984).

George Annas, Redefining Parenthood and ProtectingEmbryos: Why We Need New Laws, 14 HASTINGS CENTER

REP. 50 (1984).

Note, Asexual Reproduction and Genetic Engineering: AConstitutional Assessment of the Technology of Cloning, 47S. CAL. L. REV. 476 (1974).

John B. Attanasio, The Constitutionality of RegulatingHuman Genetic Engineering: Where Procreative Libertyand Equal Opportunity Collide, 53 U. CHI. L. REV. 1274(1986).

Stanford P. Berenbaum, Note, Davis v. Davis: FrozenEmbryos and the Thawing of the Procreative Liberties, 36WAYNE L. REV. 1337 (1990).

Julia T. Bielawski, Custody of the Cryopreserved In VitroFertilized Embryo: The Minnesota Perspective, 12 HAMLINEJ. PuB. L. & POL'Y 259 (1991).

Roger B. Bernholz & G. Nicholas Herman, LegalImplications of Human In Vitro Fertilization for thePracticing Physician in North Carolina, 6 CAMPBELL L.REV. 5 (1984).

Bigelow & Pargetter, Morality, Potential Persons andAbortion, 25 AM. PHIL. Q. 173 (1988).

Andrea L. Bonnicksen, Embryo Freezing: Ethical Issues inthe Clinical Setting, HASTINGS CENTER REP., (1988).

James B. Boskey, The Law of Alternative ReproductiveTechnoligies, in 4 FAM. L. & PRAc. § 64A.05[3] (1990).

James B. Bosky & Toby Solomon, Who Owns the Ova?There Are A Variety of Reproductive Techniques Available toInfertile Couples-But Few Legal Answers Exist Since

244 [Vol. 17:169

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Medical Technology Has Outpaced the Law, 141 N.J. LAw.20 (1991).

Colleen M. Browne & Brian J. Hynes, Note, The LegalStatus of Frozen Embryos: Analysis and ProposedGuidelines for a Uniform Law, 17 J. LEGIS. 97 (1990).

Buckle, et al., The Syngamy Debate: When Precisely Does aHuman Life Begin? 17 LAW MED. & HEALTH CARE 174(1989).

Maria Bustillo, et al., Nonsurgical Ovum Transfer as aTreatment in Infertile Women, 251 JAMA 1171, 1172(1984).

Alexander M. Capron, The New Reproductive Possibilities:Seeking a Moral Basis for concerted Action in a PluralisticSociety, 12 LAw, MED. & HEALTH CARE 192 (1984).

Jennifer L. Carow, Note, Davis V. Davis: An InconsistentException to an Otherwise Sound Rule AdvancingProcreational Freedom and Reproductive Technology, 43DEPAUL L. REV. 523 (1994).

Mark E. Cohen, The Brave New Baby and the Law:Fashioning Remedies for the Victims of In VitroFertilization, 4 AM. J. L. & MED. 319-320 (1978).

Mark Curriden, Frozen Embryos: The New Frontier, A.B.A.J. (1989).

Judith F. Daar, Selective Reduction of Multiple Pregnancy:Lifeboat Ethics in the Womb, 25 U. CAL. DAVIS L. REV. 773(1992).

Tamara L. Davis, Comment, Protecting the CryopreservedEmbryo, 57 TENN. L. REV. 507 (1990).

David G. Dickman, Comment, Social Values in a Brave NewWorld: Toward a Public Policy Regarding Embryo Statusand In Vitro Fertilization, 39 ST. Louis U. L.J. 817 (1985).

David Dickson, Europe Split on Embryo Research, 242 Sci.1117-18 (1988).

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Miargie M. Eget, Note, The Solomon Decision: A Study ofDavis v. Davis, 42 MERCER L. REV. 1113 (1991).

Jean M. Eggen, The "Orwellian Nightmare" Reconsidered:A Proposed Regulatory Framework For the AdvancedReproductive Technologies, 25 GA. L. REV. 625 (1991).

Ethics Committee of the American Fertility Society, EthicalConsiderations of the New Reproductive Technologies, 46FERTILITY & STERILITY iS, 32S (Supp. 1986).

Ethics Committee of American Fertility Society, EthicalConsiderations of the New Reproductive Technologies, 53FERTILITY & STERILITY 31S, 31S-32S (Supp. 1990).

Dan Fabricant, Note, International Law Revisited: Davis v.Davis and the Need for Coherent Policy on the Status of theEmbryo, 6 CONN. J. INT'L L. 173 (1990).

Fanta, Legal Issues Raised By In Vitro Fertilization andEmbryo Transfer in the United States, 2 IN VITRO

FERTILIZATION & EMBRYO TRANSFER 65 (1985).

Robert J. Favole, Artificial Gestation: New Meaning For theRight to Terminate Pregnancy, 21 ARIZ. L. REV. 755 (1979).

Tanya Feliciano, Davis v. Davis: What about FutureDisputes?, 26 CONN. L. REV. 305 (1993).

Clifford Grobstein et al., External Human Fertilization: AnEvaluation of Policy, 222 ScI. 127 (1983).

Clifford Grobstein et al., Frozen Embryos: Policy Issues,312 NEW ENG. J. MED. 1584 (1984).

Lisa Hemphill, American Abortion Law Applied to NewReproductive Technology, 32 JURIMETRICS J. 361 (1992).

A. Craig Hubble, Liability of the Physician for the Defects ofa Child Caused by In Vitro Fertilization, 2 J. LEG. MED. 501(1981).

Monique V. Imbert, The Golden Egg: In Vitro FertilizationProduces Adjudication, 17 RUTGERS COMPUTER & TECH.

L.J. 495 (1991).

246 [Vol. 17:169

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Leon Kass, Making Babies - The New Biology and the"Old" Morality, 26 PUB. INTEREST 18 (1972).

Leon Kass, "Making Babies"Revisited, 54 PUB. INTEREST 32(1979).

Harry D. Krause, Artificial Conception: LegislativeApproaches, 19 FAm. L. Q. 185 (1985).

Herbert T. Krimmel, The Case Against SurrogateParenting, 13 HASTINGS CENTER REP. 28-34 (1983).

Kathryn V. Lorio, Alternative Means of Reproduction:Virgin Territory for Legislation, 44 LA. L. REV. 1641 (1984).

Dennis M. et al., Test Tube Babies: Legal Issues Raised ByIn Vitro Fertilization, 67 GEO. L. J. 1295 (1979).

Robert J. Muller, Note, Davis v. Davis: The Applicability ofPrivacy and Property Rights to the Disposition of FrozenPreembryos in Intrafamilial Disputes, 24 U. TOL. L. REV.763, (1993).

David T. Ozar, The Case Against Thawing Unused FrozenEmbryos, 15 HASTINGS CENTER REP. (1985).

Alise R. Panitch, Note, The Davis Dilemma: How to PreventBattles Over Frozen Preembryos, 41 CASE W. RES. L. REV.543 (1991).

Clifton Perry & L. Kristen Schneider, CryopreservedEmbryos: Who Shall Decide Their Fate?, 13 J. LEGAL MED.463 (1992).

Mark A. Pieper, Note, Frozen Embryos-Persons orProperty? Davis v. Davis, 23 CREIGHTON L. REV. 807 (1990).

Ramsey, Manufacturing Our Offspring: Weighing theRisks, 8 HASTINGS CENTER REP. (1978).

Reproductive Technologies, Developments in the Law -

Medical Technology and the Law, 103 HARV. L. REV. 1525(1990).

1995] 247

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CAMPBELL LAW REVIEW

John A. Robertson, Reproductive Technology andReproductive Rights In The Beginning: The Legal Status ofEarly Embryos, 76 VA. L. REV. 437 (1990).

John A. Robertson, Decisional Authority Over Embroyosand Control of IVF Technology, 28 JURIMETRICS J. 285(1988).

John A. Robertson, Embryos, Families, and ProcreativeLiberty: The Legal Structure of the New Reproduction, 59 S.CAL. L. REV. 939 (1986).

John Robertson, Embryo Research, 24 WEST. ONTARIO L.REV. 15 (1986).

John A. Robertson, Ethical and Legal Issues inCryopreservation of Human Embryos, 47 FERTILITY &STERILITY 371 (1987).

John A. Robertson, In Vitro Conception and Harm to theUnborn, 8 HASTINGS CENTER REP. (1978).

John. A. Robertson, Legal and Ethical Issues Arising withPreimplantation Human Embryos, 116 ARCHIVES

PATHOLOGY LABORATORY MED. 430 (1992).

John A. Robertson, Prior Agreements for Disposition ofFrozen Embryos, 51 OHIO ST. L.J. 407 (1990).

John A. Robertson, Surrogate Mothers: Not so Novel AfterAll, 13 HASTINGS CENTER REP. (1983).

Mark V. Sauer, Assisted Reproductive Technology, 161WESTERN J. OF MED. 164 (1994).

Kim Schaefer, In Vitro Fertilization, Frozen Embryos andthe Right to Privacy-Are Mandatory Donation LawsConstitutional?, 22 PAC. L.J. 87 (1990).

Trivia Schwartz, Comment, Frozen Embryos: TheConstitution on Ice, 19 Loy. LA. L. REV. 267 (1985).

Meachelle M. Seibel, A New Era in ReproductiveTechnology: In Vitro Fertilization, Gamete Intrafallopian

248 [Vol. 17:169

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Transfer, and Donated Gametes and Embryos, 318 NEW

ENG. J. MED. 828 (1988).

Michael S. Simon, Note, "Honey, I Froze the Kids"." Davis v.Davis and the Legal Status of Early Embryos, 23 Loy. U.CHI. L.J. 131 (1991).

Peter Singer & Deane Dawson, lVF Technology and theArgument from Potential, 17 PHIL. & PuB. AFF. 87 (1988).

Michelle F. Sublett, Frozen Embryos: What Are They andHow Should The Law Treat Them, 38 CLEV. ST. L. REV. 585(1990).

Testart et al., Factors Influencing the Success Rate ofHuman Embryo Freezing in an In Vitro Fertilization andEmbryo Transfer Program, 48 FERTILITY & STERILITY 107(1987).

Hans 0. Tiefel, Human In Vitro Fertilization: AConversative View, 247 JAMA 3235 (1982).

Mario J. Trespalacios, Frozen Embryos: Towards anEquitable Solution, 46 U. MIAMu L. REV. 803 (1992).

Alan Trounson, Preservation of Human Eggs and Embryos,46 FERTILITY & STERILITY 1 (1986).

Alan Trounson, Preservation of Human Eggs and Embryos,46 FERTILITY AND STERILITY 1 (1986).

Julia T. Bielawski, Custody of the Cryopreserved In VitroFertilized Embryo: The Minnesota Perspective, 12 HAMLINE

J. PUB. L. & POL'Y, 259 (1991).

Dominick Vetri, Reproductive Technologies and UnitedStates Law, 37 IN'L & ComdP. L.Q. 505 (1988).

Marcia J. Wurmbrand, Note, Frozen Embryos: Moral,Social, and Legal Implications, 59 S. CAL. L. REV. 1079(1986)

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2. PRENATAL INJURY

I. Prenatal Injury: Practice Notes:A complaint for prenatal injury should include a statement

regarding the viability of the plaintiff only if the child was, in fact,viable at the time of injury. If the plaintiff was not viable,however, this point should be omitted altogether so as to avoidsuggesting argument on the issue to the defendant. Thedefendant, on the other hand, should look for this fact in thecomplaint, and if it is not present, defense counsel should obtainsuch information in discovery. Causation is likely to be thelargest issue of proof in a case for prenatal injury. The difficultyin establishing a causal link between the injuries suffered and thedefendant's actions steadily increases as the gestational age atwhich the injuries were inflicted decreases. Therefore, it is veryimportant for the plaintiff to obtain expert evidence that willeliminate intervening causes that may have also been responsiblefor the same type of injuries. The ultimate goal is to eliminate allcauses but the defendant's actions as a possible cause of theinjuries, so that the jury can infer that such actions must havebeen the cause of the injuries. For instance, where the plaintiff'smother was over forty years of age, it would be important to havean expert testify to the fact that the type of injuries incurred bythe plaintiff are not the type of complications associated withchildbirth in older women. One of the best ways to establishcausation is to prove that the defendant's actions causedpremature birth, which in turn caused the plaintiff's injuries.

Proving damages also raises complex issues. Economists willprobably be needed to establish any claims for lost earningcapacity, and accordingly, different economic models will need tobe researched. Graphic representation of the plaintiff's damagesin the most basic of forms is a necessity to simplify the process andto communicate effectively with the jury. A 'day in the life' videocan prove very effective, as can testimony from the familyregarding their observations of what the plaintiff's abilities are atpresent.

II. Prenatal Injury: Bibliography:

A. AM. JUR. PROOF OF FACTS

9 AM. JUR. P.O.F. Prenatal Injuries 517 (1961).

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33 AM. JUR. P.O.F.2D Qualification of Medical ExpertWitness 179 (1983).

38 AM. JUR. P.O.F.2D Forensic Economics - Period ofEconomics Loss in Death and Personal Injury Cases 195(1984).

41 AM. JUR. P.O.F.2D Trauma in Pregnancy 1 (1985).

B. AM. JUR.

29 AM. JUR. 2D Evidence §§ 655, 656 (1982).

30 AM. JuR. 2D Expert and Opinion Evidence §§ 103-113(1982).

22 AM. JuR. 2D Damages §§ 291.

62A AM. JuR. 2D 393 (Supp.).

C. AM. JuR. TRIALS

40 AM. JUR. TRIALS 1 (1990).

2 AM. JUR. TRIALS Locating Medical Experts 357 (1964).

4 AM. JUR. TRIALS Use of Medical Consultants 253 (1966).

5 AM. JUR. TRIALS Showing Pain and Suffering 921 (1966).

6 AM. JUR. TRIALS Collateral Cross-Examination of MedicalWitness 423 (1967).

6 AM. JuR. TRIALS Sample Summations in Personal Injuryand Death Cases 807 (1967).

23 AM. JUR. TRIALS Determining the Medical and EmotionalBases for Damages 479 (1976).

36 AM. JuR. TRIALS Obtaining, Organizing and Abstracting

Medical Records for Use in a Lawsuit 695 (1988).

D. ANNOTATIONS

Marc L. Carmichael, Annotation, Liability of Hospital orMedical Practitioner, under Doctrine of Strict Liability in

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Tort, or Breach of Warranty, for Harm Caused by Drug,Medical Instrument, or Similar Device used in TreatingPatient, 54 A.L.R. 3d 258 (1973).

Roland F. Chase, Annotation, Liabilty for Prenatal Injuries,40 A.L.R. 3d 1222 (1971).

David E. Feld, Annotation, Malpractice: Physician's Dutyto Inform Patient of Nature and Hazards of Treatment inPregnancy and Childbirth Cases Under the Doctrine ofInformed Consent, 69 A.L.R. 3d 1250 (1976).

Thomas M. Fleming, Annotation, Right of Child to ActionAgainst Mother for Infliction of Prenatal Injuries, 78 A.L.R.4TH 1082 (1990).

Annotation, Liability for Child's Personal Injuries or DeathResulting from Tort Committed Against Child's MotherBefore Child was Conceived, 91 A.L.R. 3d 316 (1979).

James L. Rigelhaupt, Annotation, Liability of Manufactureror Seller for Injury or Death Allegedly Caused by Use ofContraceptive, 70 A.L.R. 3d 315 (1976).

Jay M. Zitter, Annotation, LIabilty of Hospital, Physician orOther Medical Personnel for Death or Injury From Use ofDrugs to Stimulate or Retard Labor, 1 A.L.R. 5th 243(1992).

Jay M. Zitter, Annotation, Liability of Hospital, Physicianor Other Medical Personnel for Death or Injury to Mother orChild Caused by Improper Administration of, or Failure toAdminister, Drugs and Anesthesia, During Labor andDelivery, 1 A.L.R. 5th 269 (1992).

Jay M. Zitter, Annotation, Liability of Hospital, Physicianor Other Medical Personnel for Death or Injury to Mother orChild Caused by Improper Choice Between, or Timing of,Vaginal or Cesarean Delivery, 4 A.L.R. 5th 148 (1992).

Jay M. Zitter, Annotation, Liability of Hospital, Physicianor Other Medical Personnel for Death or Injury to Mother orChild Caused by Improper Procedures During VaginalDelivery, 4 A.L.R. 5th 210 (1992).

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E. PUBLICATIONS/ARTICLES

M. KLAUS & J. KENNELL, PARENT-INFANT BONDING 13-14(1982).

M. Harrison et al., The Unborn Patient, Diagnosis andTreatment 1-10 (1984).

STEIN, DAMAGES AND RECOVERY: PERSONAL INJURY AND

WRONGFUL DEATH ACTIONS §§ 220-232 (1972).

Peter B. Babin, Preconception Negligence: Reconciling anEmerging Tort, 67 GEO. L.J. 1239, 1246 (1979).

J. S. Bainbridge, Loss of Consortium Between Parent andChild, 71 A.B.A. J. 47 (1985).

Gerard M. Bambrick, Developing Maternal LiabilityStandards for Prenatal Injury, 61 ST. JOHN'S L. REV. 592(1987).

Ron Beal, "Can I Sue Mommy?,"An Analysis of a Woman'sTort Liability for Prenatal Injuries to Her Child Born Alive,21 SAN DIEGO L. REV. 325 (1984).

Bell, Legislative Intrusions into the Common Law ofMedical Malpractice: Thoughts About the Deterrent Effectof Tort Liability, 35 SYRACUSE L. REV. 939 (1984).

Donald W. Brodie, The New Biology and the Prenatal Child,9 J. FAm. L. 391 (1970).

Elizabeth F. Collins, An Overview and Analysis: PrenatalTorts, Preconception Torts, Wrongful Life, Wrongful Death,and Wrongful Birth: Time for a New Framework, 22 J.FAM. L. 677 (1983).

Kathleen Gallagher, Comment, Wrongful Life: Should theAction Be Allowed?, 47 LA. L. REV. 1319 (1987).

William T. Gamble, Note, Tort Actions for Injuries toUnborn Infants, 3 VAND. L. REV. 282 (1950).

Anthony M. Gamboa, What the Infant or Child Could HaveBeen, 22 TRIAL 76 (1986).

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Erving D. Games, Comment, The Infant's Right of Actionfor Prenatal Injuries, 1951 Wis. L. REV. 518 (1951).

David A. Gordon, The Unborn Plaintiff, 63 MICH. L. REV.579 (1965).

Frank Gulino, Comment, Legal Duty to the UnbornPlaintiff: Is There a Limit?, 6 FORDHAM URB. L. J. 217(1978).

Frank J. Hartye, Note, Tort Recovery for the Unborn Child,15 J. FAM. L. 276 (1977).

G. Craig Hubble, Liability of the Physician for the Defects ofa Child Caused by In Vitro Fertilization, 2 J. LEG. MED. 501(1981).

Mark L. Johnson, Note, Compensating Parents For TheLoss Of Their Nonfatally Injured Child's Society: ExtendingThe Notion Of Consortium To The Filial Relationship, 1989U. ILL. L. REV. 761 (1989).

Lenhardt, Abortion and Pre-Natal Injury: A Legal andPhilosophical Analysis, 13 WESTERN ONT. L. REV. 97 (1974).

Charles A. Lintger, Note, The Impact of Medical Knowledgeon the Law Relating to Prenatal Injuries, 110 U. PA. L. REV.554 (1962).

Julie E. Lippert, Prenatal Injuries From Passive TobaccoSmoke: Establishing a Cause of Action for Negligence, 78Ky. L.J. 865 (1989/1990).

Jennifer Anne Midlock, Prenatal Injuries Caused byNegligence Prior to Conception: An Expansion of TortLiability, 54 CHI. KENT L. REV. 568 (1977).

Michael D. Morrison, Torts Involving the Unborn-ALimited Cosmology, 31 BAYLOR L. REV. 131 (1979).

James P. Murphy, Evolution of the Prenatal Duty Rule:Analysis by Inherent Determinants, 7 U. DAYTON L. REV.351 (1982).

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William I. Muse & Nicholas A. Spinella, Right of Infant toRecover for Prenatal Injury, 36 VA. L. REV. 611 (1950).

Eli H. Newberger et al., Abuse of Pregnant Women andAdverse Birth Outcome, Current Knowledge andImplications for Practice, 267 JAMA 2370 (1992).

Note, Maternal Rights and Fetal Wrongs: The Case Againstthe Criminalization of "Fetal Abuse," 101 Hiv. L. REV. 994(1988).

Note, Right to Recover for Prenatal Injuries, 44 YALE L. J.1468 (1935).

Note, Rights of Unborn Children in the Law of Torts, 34HARv. L. REV. 549 (1921).

Note, Torts - Prenatal Injuries to Infants, 87 U. PA. L.REV. 1016 (1939).

Note, Wrongful Birth Actions: The Case Against LegislativeCurtailment, 100 HARv. L. REV. 2017 (1987).

Joseph P. Paonessa, Recovery for Prenatal Injuries:Michigan Exorcises its 'Ghosts of the Past,' 47 NOTRE DAMELAw 976 (1972).

Stephen S. Paskal, Liability for Prenatal Harm in theWorkplace: The Need for Reform, 17 U. PUGET SOUND L.REV. 283 (1994).

Rawleigh H. Ralls, Injury and Wrongful Death Litigation-Time to Find an Economist, 13 TRIAL 47 (1977).

Horace B. Robertson, Jr., Toward Rational Boundaries ofTort Liability for Injury to the Unborn: Prenatal Injuries,Preconception Injuries and Wrongful Life, 1978 DUKE L. J.1401 (1979).

Thomas D. Rogers, Wrongful Life and Wrongful Birth:Medical Malpractice in Genetic Counseling and PrenatalTesting, 33 S.C. L. REV. 713 (1982).

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Sheryl A. Symonds, Comment, Wrongful Death of a Fetus:Viability Is Not a Viable Distinction, 8 U. PUGET SOUND L.REV. 103 (1984).

Deborah M. Santello, Note, Maternal Tort Liability ForPrenatal Injuries, 22 SUFFOLK U. L. REV. 747 (1988).

Carol A. Simon, Parental Liability for Prenatal Injury, 14COLUM. J. L. & Soc. PROBS. 47 (1978).

Carol Ann Simon, Parental Liability for Prenatal Injury, 14COLUM. J. L. & Soc. PROBS. 47 (1978).

Stewart, The Case of Prenatal Injury, 15 U. FLA. L. REV.

527 (1963).

Marten A. Trotzig, The Defective Child and the Actions forWrongful Life and Wrongful Birth, 14 FAM. L.Q. 15 (1980).

Edwin B. Wainscott, Note, Computation of Lost FutureEarnings in Personal Injury and Wrongful Death Actions,11 INDIANA L. REV. 647 (1978).

Richard Willia, Negligence and the Unborn Child: A Timefor Change, 18 S.D.L. REV. 204 (1973).

3. WRONGFUL DEATH OF UNBORN CHILD

I. Wrongful Death: Practice Notes:

A. DEFENSE OF A FETAL WRONGFUL DEATH CASE:

1. VIABILITY:Given the current status of the law in North Carolina, defense

counsel should make every effort to discover what evidence isavailable on this issue. In a close case, a medical expert will beneeded to examine the medical records pertaining to the mother,the child's prenatal care, including all testing done, i.e.,sonograms, ultrasounds, amnioscentesis, etc., and the allegeddeath-causing injury. Counsel should also consider taking thedepositions of the doctors responsible for the care of the motherand child during the pregnancy, and also those allegedlyresponsible for the alleged injury. As the crucial issue, doctorsshould be required to state their opinions as to the child's viabilityat the time the alleged injury was inflicted. If enough evidence

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exists to clearly establish that the child was not viable at the timeof injury, a motion for summary judgment may be appropriate.Depending on the facts, counsel should consider taking theposition that viability is a relatively concrete concept that can beestablished at a certain point during gestation. To argue thatviability is relatively uncertain and difficult to prove with anycertainty opens the possibility for the court to err on the side ofthe plaintiff due to the broad remedial purposes of the wrongfuldeath statute.

The standard list of defenses available in a wrongful deathclaim are also applicable to the fetal plaintiff.

2. DAMAGES:

If the case proceeds to trial, the next line of defense will be theissue of damages. Counsel should remember that the onlydamages available to the fetal plaintiff are those for medical andfuneral expenses, pain and suffering, nominal damages, andpunitive damages. Punitive damages, however, are usually ofgreatest concern to defense counsel given the potential for a largeverdict. This is especially so in a situation where the jury will betold it cannot make any award to the estate, i.e., the parents, forthe loss of their child's companionship, society, and the like. Theonly real opportunity to vent jury frustration and/or angertowards the defendant will, therefore, naturally be in the area ofpunitive damages. Accordingly, every action must be taken atevery stage of the litigation process to remove the potential for arecovery of punitive damages. The standard for such damages isthe same as in other cases, and accordingly, appropriate researchshould be done.

There exists some question as to the level of proof required ofthe plaintiff on the issue of damages for the pain and suffering ofthe fetal decedent. The defendant should make a pretrial motionto exclude such evidence as a matter of law if it appears that theplaintiff's evidence on this issue is weak or speculative. Given thelanguage in DiDonato regarding damages for pain and suffering, agood faith argument can be made that without competent medicalevidence proving that the fetus was, in fact, capable of feelingpain, the plaintiff's claim for such damages should be dismissedand all evidence on this point excluded from the trial. If thepretrial motion is unsuccessful, another motion can be made attrial to strike the evidence.

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B. PROSECUTION OF A WRONGFUL DEATH CASE:

1. VIABILITY:The plaintiff bears the burden of production on this issue. To

prevail, medical evidence in the form of records and experttestimony is needed. Doctors should state with a reasonabledegree of medical certainty that the decedent was viable at thetime the death-causing injury was sustained. Plaintiff can arguethat viability should never be set at more than twenty weeks, asthis is the gestational age at which abortions are prohibited.Plaintiff can also argue that because viability can never beestablished with absolute certainty without putting the fetus tothe actual test of survival, any doubt or ambiguity as to viabilityof the decedent should be resolved in favor of the plaintiff. This isespecially true given the broad remedial purposes of the wrongfuldeath statute and the Court's language in DiDonato regardingwho should be regarded as a 'person'.

Finally, the plaintiff must plead in her complaint that thefetal decedent was viable at the time the alleged injury wasinflicted. Being a threshold issue, such a pleading is essential tothe survival of the cause of action.

2. DAMAGES:

The fetal plaintiff also bears the burden of proving eachelement of damages. Nominal damages and medical and funeralexpenses are relatively simple to prove. Plaintiff should presentall medical expenses precipitated by the wrongful act and shouldnot attempt to separate the mother's expenses from those of thechild. The statute allows recovery of all medical expensesproximately caused by the tortfeasor's negligence.

The main issue here is the damages for the pain and sufferingof the child before death. Again, medical evidence is crucial, andthe plaintiff should talk with the health providers who treated themother and child for the injuries as soon as possible to preserveany crucial data. Fetal stress monitor printouts are especiallyimportant in this context and should be obtained immediately forintepretation by experts. Any other indicia of the child's consciousstate prior to death should be carefully noted. This is the singlearea of damages, besides punitives, available to the jury to bringback any sizeable verdict. As such, it should be given thoughtfulattention.

Punitive damages are statutorily available and should beplead in any case where there is intentional or wreckless conduct

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by the defendant which allegedly caused the child's death. Courtsare unlikely to look favorably on such conduct, and thus are morelikely to allow the punitive damages issue to go to the jury.Punitive damages should thus be plead whenever good faithallows, and the claim should be vigorously defended.

A case praying for pecuniary damages and loss of societydamages should be brought so that the issue can possibly berevisited by the North Carolina Supreme Court on appeal. A casewhich presents good data on the progress and health of the fetusprior to death should be selected to give the court a good scenariofor recognizing a plaintiff's right to attempt to prove these types ofdamages.

II. Wrongful Death: Bibliography:

A. AM. JuR. PROOF OF FACTS

14 AM. JUR. P.O.F.2D Forensic Economics 311 (1987).

24 AM. JUR. P.O.F.2D Wrongful Death Damages 211 (1980).

27 AM. JUR. P.O.F.2D Loss of Consortium in Parent-ChildRelationship 393 (1981).

33 AM. JuR. P.O.F.2D Qualification of Medical Expert 179(1983).

38 AM. JuR. P.O.F.2D Forensic Economics 195 (1984).

41 AM. JUR. P.O.F.2D Trauma in Pregnancy 1 (1985).

49 AM. JuR. P.O.F.2D Damages for Wrongful Death of Child191 (1987).

B. AM. JuR.

22 AM. JuR. 2D Death §§ 144-67 (1988).

22A AM. JuR. 2D Death § 1 (1988).

29 AM. JuR. 2D Evidence §§ 655, 656 (1994).

30 AM. JUR. 2D Expert and Opinion Evidence §§ 103-113(1989).

62A AM. JuR. 2D Prenatal Injuries §§ 46-54 (1990).

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C. AM. JUR. TRIALS



5 Am. JUR. TRIALS Showing Pain and Suffering 921 (1966).

6 AM. JUR. TRIALS Sample Summations in Personal Injuryand Death Cases 807 (1967).

11 AM. JuR. TRIALS Representation of Survivors in DeathActions 1 (1966).

15 AM. JuR. TRIALS Discovery and Evaluation of MedicalRecords 373 (1968).

20 AM. JuR. TRIALS Damages for Wrongful Death of Child513 (1973).

23 AM. JUR. TRIALS Determining the Medical and EmotionalBases for Damages 479 (1976).

40 AM. JUR. TRIALS Obstetrical Malpractice 1 (1990).

D. ANNOTATIONS

Robert A. Brazener, Annotation, Conflict of laws as to rightof action for loss of consortium, 46 A.L.R. 3D 880 (1972).

Marc L. Carmichael, Annotation, Liability of hospital ormedical practitioner, under doctrine of strict liability in tort,or breach of warranty, for harm caused by drug, medicalinstrument, or similar device used in treating patient, 54A.L.R. 3D 258 (1973).

T.W. Cousens, Annotation, Changes in Cost of Living or inPurchasing Power of Money as Affecting Damages forPersonal Injuries or Death, 12 A.L.R. 2D 611 (1950).

M. L. Cross, Annotation, Measure and elements of damagesfor personal injury resulting in death of infant, 14 A.L.R. 2D

485 (1950).

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Michael A. DiSabatino, Annotation, Negligence of spouse orchild as barring or reducing recovery for loss of consortiumby other spouse or parent, 25 A.L.R. 4TH 118 (1983).

Michael A. DiSabatino, Annotation, Negligence of oneparent contributing to injury or death of child as barring orreducing damages recoverable by other parent for lossessuffered by other parent as result of injury or death of child,26 A.L.R. 4TH 396 (1983).

Frankcis M. Dougherty, Annotation, Excessiveness andAdequacy of Damages for Personal Injuries Resulting inSeath of Minor, 49 A.L.R. 4TH 1076 (1986).

Daniel E. Feld, Annotation, Malpractice: Physician's dutyto inform patient of nature and hazards of treatment inpregnancy and childbirth cases under the doctrine ofinformed consent, 69 A.L.R. 3D 1250 (1976).

W.L. Heymon, Annotation, Action for death of unborn child,15 A.L.R. 3D 992 (1979).

James L. Isham, Annotation, Recovery of damages for griefor mental anguish resulting from death of child - moderncases, 45 A.L.R. 4TH 234 (1990).

James L. Isham, Annotation, Excessiveness or adequacy ofdamages awarded for parties' noneconomic loss caused bypersonal injury or death of child, 61 A.L.R. 4TH 413 (1988).

Annotation, Liability for child's personal injuries or deathresulting from tort committed against child's mother beforechild was conceived, 91 A.L.R. 3D 316 (1979).

James 0. Pearson, Jr., Annotation, Per Diem or SimilarMathematical Basis for Fixing Damages for Pain andSuffering, 3 A.L.R. 4TH 940 (1981).

James 0. Pearson, Jr., Annotation, Recovery, in Action forBenefit of Decedent's Estate in Jurisdiction Which has BothWrongful Death and Survival Statutes of Value of EarningsDecedent Would Have Made After Death, 76 A.L.R. 3d 125(1977).

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J. D. Perovich, Annotation, Spouse's or Parent's Right toRecovery Punitive Damages in Connection with Recovery ofDamages for Medical Expenses or Loss of Services orConsortium Arising from Personal Injury to Other Spouseor to Child, 25 A.L.R. 3d 1416 (1969).

John D. Perovich, Annotation, Remarriage of survivingparent as affecting action for wrongful death of child, 69A.L.R. 3D 1038 (1976).

James L. Rigelhaugt, Annotation, Liability of manufactureror seller for injury or death allegedly caused by use ofcontraceptive, 70 A.L.R. 3D 315 (1976).

Michael A. Rosenhouse, Annotation, Effect of AnticipatedInflation on Damages for Future Losses-Modern Cases, 21A.L.R. 4TH 21 (1983).

Sheldon R. Shapiro, Annotation, Right to maintain actionor to recover damages for death of unborn child, 84 A.L.R.3D 411 (1978).

W.E. Shipley, Annotation, Liability of physician or surgeonfor injury to child in pregnancy and childbirth cases, 99A.L.R. 2D 1398 (1965).

Emile F. Short, Annotation, Parent's Desertion,Abandonment, or Failure to Support Minor Child asAffecting Right to Measure of Recovery for Wrongful Deathof Child, 53 A.L.R. 2D 566 (1973).

Todd R. Smyth, AnnotationParent's Right to Recover forLoss of Consortium in Connection with Injury to Child, 54A.L.R. 4TH 112 (1987).

Todd R. Smyth, Annotation, Parent's right to recover for lossof consortium in connection with injury to child, 54 A.L.R.4TH 112 (1987).

John F. Wagnor, Jr., Annotation, Recovery of damages forloss of consortium resulting from death of child - modernstatus, 77 A.L.R. 4TH 411 (1990).

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Mitchell J. Weldman, Prenatal Injuries, Wrongful LIfe,Birth or Conception, 62A AM. JuR. 2D 393 (Supp. 1994).

Jay M. Zitter, Annotation, Liability of hospital, physician orother medical personnel for death or injury from use ofdrugs to stimulate or retard labor, 1 A.L.R. 5TH 243 (1992).

Jay M. Zitter, Annotation, Liability of hospital, physician orother medical personnel for death or injury to mother orchild caused by improper administration of, or failure toadminister, drugs and anesthesia, during labor anddelivery, 1 A.L.R. 5TH 269 (1992).

Jay M. Zitter, Annotation, Liability of hospital, physician orother medical personnel for death or injury to mother orchild caused by inadequate attendance or monitoring ofpatient during and after pregnancy, labor, and delivery, 3A.L.R. 5TH 146 (1992).

Jay M. Zitter, Annotation, Liability of physician, nurse orhospital for failure to contact physician or keep physicianfully informed concerning status of mother duringpregnancy, labor, and childbirth, 3 A.L.R. 5TH 123 (1992).

Jay M. Zitter, Annotation, Liability of hospital, physician orother medical personnel for death or injury to mother orchild caused by improper choice between, or timing of,vaginal or cesarean delivery, 4 A.L.R. 5TH 148 (1992).

Jay M. Zitter, Annotation, Liability of hospital, physician orother medical personnel for death or injury to mother orchild caused by improper procedures during vaginaldelivery, 4 A.L.R. 5TH 210 (1992).

Jay M. Zitter, Annotation, Liability of hospital, physician orother medical personnel for death or injury to mother orchild caused by improper procedures during cesareandelivery, 76 A.L.R. 4TH 1112 (1987).

C. PUBLICATIONS/ARTICLES

KLAUS & KENNELL, PARENT-INFANT BONDING 13-14 (1982).

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STUART SPEISER & CLARK BOARDMAN CALLAGHAN RECOVERY

FOR WRONGFUL DEATH (3d ed. 1992).

Delton Atkinson, Improving Cause-of-Death Statistics: TheCase of Fetal Deaths, 83 AM. J. PUBLIC HEALTH 8:1084(1993).

Peter B. Babin, Preconception Negligence: Reconciling anEmerging Tort, 67 GEO. L.J. 1239 (1979).

J. S. Bainbridge, Jr., Loss of Consortium Between Parentand Child, 71 A.B.A. J. 47 (1985).

Bereavement counselling. Coping with a child's death: ACase Study, 7 NuRs. STAND. 35:27 (1993).

Harry S. Cherken, Jr., Note, Recovery for Wrongful Death ofa Stillborn Fetus Examined, 21 VILL. L. REV. 994 (1976).

Harry S. Cherksen, Torts - Wrongful Death - Recoveryfor Wrongful Death of a Stillborn Fetus Examined, 21 VILL.L. REV. 994 (1976).

Elizabeth F. Collins, An Overview and Analysis: PrenatalTorts, Preconception Torts, Wrongful Life, Wrongful Death,and Wrongful Birth: Time For a New Framework, 22 J.FAM. L. 677 (1984).

Philip H. Corboy, The Impact of Economic Theory on theDetermination of Damages in a Wrongful Death Case, 20 F.606 (1985).

Susan D. Crooks, Comment, Wrong Without a Remedy-North Carolina and the Wrongful Death of a Stillborn, 9CAMPBELL L. REV. 93, 116 (1986).

Leonard Decof, Damages in Actions for Wrongful Death ofChildren, 47 NOTRE DAME L. REV. 197 (1971).

Robert J. Del Tufo, Recovery for Prenatal Torts: Actions forWrongful Death, 15 RUTGERS L. REV. 61(1960).

Editorial, The Viability Watershed, 39 MEDICO-LEGAL J. 1(1971).

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Christopher P. Edwards, Note, Didonato v. Wortman andWrongful Death of a Viable Fetus In North Carolina, 66N.C. L. REV. (1988).

Estimating the Time of Death in Stillborn Fetuses: ExternalFetal Examination; a Study of 86 Stillborns, 80 OBSTET.

GYNECOL. 4:593 (1992).

J.C. Fletcher & M. I. Evans, Maternal Bonding in EarlyFetal Ultrasound Examinations, 308 NEW ENG. J. MED. 392(1983).

William T. Gamble, Note, Tort Actions for Injuries toUnborn Infants, 3 VAND L. REV. 282 (1950).

Anthony M. Gamboa, What the Infant or Child Could HaveBeen, 22 TRIAL 76 (Sept. 1986).

Donald L. Gibson, The Conditional Liability Rule - AViable Alternative for the Wrongful Death of a StillbornChild, 28 U. FLA. L. REV. 187 (1975).

David A. Gordon, The Unborn Plaintiff, 63 MICH. L. REV.579 (1965).

Frank Gulino, Comment, Legal Duty to the UnbornPlaintiff. Is There a Limit? 6 FoRDHAm URB. L. J. 217(1978).

Frank J. Hartye, Tort Recovery for the Unborn Child, 15 J.FAm. L. 276 (1977).

David Kader, The Law of Tortious Prenatal Death SinceRoe v. Wade, 45 Mo. L. REV. 639 (1980).

David Kader, The Law of Tortious Prenatal Death Since Roev. Wade, 45 Mo. L. REV. 639 (1980).

Joseph S. Kashi, The Case of the Unwanted Blessing:Wrongful Life, 31 U. MIAMI L. REV. 1409 (1977).

Bernadette Kennedy, Comment, The Trend TowardJudicial Recognition of Wrongful Life: A Dissenting View,31 UCLA L. REV. 473 (1983).

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Kennelly, Proving Damages in a Wrongful Death Case-How to Do It, 19 TRIAL LAWYER'S GUIDE 25, (1975).

Kowalski & Osborn, Helping Mothers of Stillborn InfantsGrieve, 2 M.C.N. 29 (1977).

Michael P. McCready, Note, Recovery For The WrongfulDeath of a Fetus, 25 U. RICH. L. REV. 391 (1991).

Joseph McReynolds, Note, Childhood's End: WrongfulDeath of a Fetus, 42 LA. L. REV. 1411 (1982).

Gary A. Meadows, Comment, Wrongful Death and the LostSociety of the Unborn, 13 J. LEGAL MED. 99 (1992).

Kathleen K. Miller, Note, Garland v. Herrin: SurvivingParents' Remedies for a Child's Wrongful Death-ThePecuniary Loss Rule and Reckless Infliction of EmotionalDistress, 32 CLEV. ST. L. REV. 641 (1984).

Michael D. Morrison, Torts Involving the Unborn - ALimited Cosmology, 31 BAYLOR L. REV. 131 (1979).

William T. Muse & Nicholas A. Spinella, Right of Infant toRecover for Prenatal Injury, 36 VA. L. REV. 611 (1950).

Eli H. Neberger et al., Abuse of Pregnant Women andAdverse Birth Outcome, Current Knowledge andImplications for Practice, J.A.M.A. 2370-2372 (1992).

Note, Right to Recover for Prenatal Injuries, 44 YALE L. J.1468 (1935).

Note, Torts-Prenatal Injuries to Infants, 87 U. PA. L. REV.

1016 (1939).

Karen Rene Osborne, Comment, Torts - The Right ofRecovery for the Tortious Death of the Unborn, 27 How. L.J.1649 (1984).

Patricia Pacey, Measures of Economic Loss in the WrongfulDeath of a Child, 14 COLO. LAW. 392 (1985).

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Joseph P. Paonessa, Recovery for Prenatal Injuries:Michigan Exorcises its "Ghosts of the Past," 47 NOTRE DAMEL. REV. 976 (1972).

Phillips, The North Carolina Wrongful Death Law-A BriefSummary, N.C. ACAD. OF TRIAL LAWYERS, WRONGFUL

DEATH 1 (1978).

Harry Poulos, Comment, Is There Consortium Before Birth?Expanding the Availability of Loss of Society Damages inWrongful Death Actions, 24 Loy L.J. 559 (1993).

Rawleigh H. Ralls, Injury and Wrongful Death Litigation-Time to Find an Economist, 13 TRIAL 47 (1977).

Reading, Psychological Changes Over the Course ofPregnancy: A Study of Attitudes Toward the Fetus/Neonate, 3 HEALTH PSYCHOLOGY 211 (1984).

Steven E. Segal, Wrongful Death and the Stillborn Fetus -A Current Analysis, 7 Hous. L. REV. 449 (1970).

S. Speiser,RECOVERY FOR WRONGFUL DEATH Punitivedamages§§ 3:3, 3:4 (2d ed 1975).

Larry S. Stewart, Note, The Case of Prenatal Injury, 15 U.FLA. L. REV. 527 (1963).

Janet I. Stich, Note, Recovery for Wrongful Death of aViable Fetus, 19 AKRON L. REV. 127 (1985).

Sheryl Anne Symonds, Wrongful Death of the Fetus:Viability is Not a Viable Distinction, 8 U. PUGET SOUND L.

REV. 103 (1984).

Thullen, Grief in the Perinatal Period, 2 CURRENT

PRACTICES 1 (1981).

Wilbur L. Tomlinson,. Note, Torts - Wrongful Birth andWrongful Life, 44 Mo. L. REV. 167, 173 (1979).

Lori A. Torres, Note, The Pecuniary Loss Rule as anInappropriate Measure of Damages in Child Death Cases,18 IND. L. REV. 731 (1985).

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Ward Wagner, Jr., "And Then There Were..." - ProvingDamages in the Wrongful Death of a Minor Child, 19 TRIA77 (1983).

Edwin B. Wainscott, Note, Computation of Lost FutureEarnings in Personal Injury and Wrongful Death Actions,11 IN. L. REV. 647 (1978).

Thomas L. Wenger, Comment, Development in the Law ofPrenatal Wrongful Death, 69 DICK. L. REV. 258 (1965).

Richard Willa, Comment, Negligence and the Unborn Child:A Time for Change, 18 S.D. L. REV. 204 (1973).

Richard E. Wood, Note, Wrongful Death and the StillbornFetus: A Common Law Solution to a Statutory Dilemma, 43U. PITT. L. REV. 819 (1982).

Note, Rights of Unborn Children in the Law of Torts, 34HARV. L. REV. 549 (1921).

4. WRONGFUL LIFE

I. Wrongful Birth/Life/Pregnancy: Practice Notes:The practitioner should throroughly understand the

distinctions between these different causes of action. Wrongfulconception is basically a malpractice claim and should be handledaccordingly. Counsel should remember that the cause of action isfor the parent(s) and not for the resulting child. Counsel shouldplead the fact of pregnancy as the injury. Plaintiffs may want toinclude a claim that the defendant's actions violated theirconstitutional right to control their reproduction.

The defendant should emphasize discovery on the issue ofwhy the plaintiffs did not want to become pregnant. A desire toavoid disruption of careers or lifestyle or to avoid bearing agenetically impaired child more aptly state a claim for moneydamages than a claim which expressly a wish to avoid apregnancy dangerous to the mother. This is especially true if themother delivered without complications, and she had alwayswanted the child. Defendant should also discover if the motherhad a normal pregnancy, if she suffered from morning sicknessand for how long, the method of delivery, whether anesthesia wasadministered, what type was given and how long it was observedto be in effect, the length of the labor, and finally whether there

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were any complications in delivery. All of these factors go to theissue of the mother's pain and suffering arising from thepregnancy.

Both parties should be mindful of the statute of limitations insuch cases. The North Carolina Supreme Court has not ruled onwhen the limitations period will begin to run, though it is likely todepend on the facts of each case. In failed sterilization cases, forinstance, the limitations period will probably run from the timethe plaintiff discovered that the operation was unsuccessful.Negligent counseling actions, however, may begin to run at thetime the pregnancy occurred or at the time the negligence isdiscovered. Counsel should also consider the role of the doctrineof res ipsa loquitur in wrongful conception cases, especially thoserevolving around a claim of unsuccessful sterilization.

II. Wrongful LIfe: Bibliography:

A. Am. JuR. PROOF OF FACTS

18 AM. JUR. P.O.F.2D Obstetrical Malpractice 187 (1976).

22 AM. JUR. P.O.F.2D Medical Malpractice - Use ofHospital Records 1 (1980).

33 AM. JuR. P.O.F.2D Qualification of Medical Expert

Witness 179 (1983).

B. AM. JuR.

61 AM. JUR. 2D Physician's duty of care, and liability formedical malpractice §§ 200 (1981).

62A AM. JUR. 2D § 393 (Supp.).

C. AM. JUR. TRIALS

2 AM. JuR. TRIALs Locating Medical Experts 357 (1964).

4 AM. JuR. TRIALs Use of Medical Consultants 253 (1966).

15 AM. JuR. TRIALS Discovery and Evaluation of MedicalRecords 373 (1968).

16 AM. JuR. TRIALs Defense of Medical Malpractice Cases471 (1969).

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19 AM. JUR. TRIALS Defending Hospital - Negligence ofPhysician-Employee 431 (1972).

21 AM. JUR. TRIALS Determining the Medical and Emotional

Bases for Damages 479 (1974).


D. ANNOTATIONS

A.S. Klein, Annotation, Medical Malpractice, and Measureof Elements of Damages, in Connection with Sterilization orBirth Control Procedures, 27 A.L.R. 3D 906 (1969).

Annotation, Liability of Physician or Surgeon for Injury toChild in Pregnancy and Childbirth Cases, 99 A.L.R. 2D1398 (1965).

Jack W. Shaw, Jr., Annotation, Recovery Against Physicianon Basis of Breach of Contract to Achieve Particular Resultor Cure, 43 A.L.R. 3D 1221 (1972).


Peter A. Bell, Legislative Intrusions into the Common Lawof Medical Malpractice: Thoughts About the DeterrentEffect of Tort Liability, 35 SYRACUSE L. REV. 939 (1984).

Bruce L. Belton, Comment, Wrongful Life: A LegislativeSolution to Negligent Genetic Counseling, 18 U.S.F. L. REV.77 (1983).

James Bopp, Jr., The "Rights" and "Wrongs" of WrongfulBirth and Wrongful Life: A Jurisprudential Analysis ofBirth Related Torts, 27 DUQ. L. REV. 461 (1989).

Bopp, Bostrom, & McKinney, The Rights' and Wrongs'ofWrongful Birth and Wrongful Life: A JurisprudentialAnalysis of Birth Related Torts, 27 DUQ. L. REV. 461 (1989).

Alexander M. Capron, Tort Liability in Genetic Counseling,79 COLUM. L. REV. 618 (1979).

Camilla D. Cochran, Comment, Wrongful Life: The TortThat Nobody Wants, 23 SANTA CLARA L. REV. 847 (1983).

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Mark E. Cohen, Park v. Chessin: The Continuing JudicialDevelopment of the Theory of Wrongful Life', 4 AM. J.L. &MED. 211 (1979).

Elizabeth F. Collins, An Overview and Analysis: PrenatalTorts, Preconception Torts, Wrongful Life, Wrongful Death,and Wrongful Birth: Time for a New Framework, 22 J.FAM. L. 677 (1983-84).

James L. Donovan, Jr., Comment, Wrongful Birth andWrongful Life: Questions of Public Policy, 28 Loy. L. REV.77 (1982).

Gary R. Dorst, Comment, Wrongful Life: A TortResuscitated, 7 AM. J. TRIAL ADvoc. 167 (1983).

Elias & Verp, Prenatal Diagnosis of Genetic Disorders, 12OBSTET. GYNEcOL. ANN. 79 (1983).

Danna Fogarty-Brabender, Comment, Wrongful Birth,'Should Liability Be Imposed Upon a Physician Who Fails toWarn Parents of the Risks of Defects in Their UnbornChildren?, 14 GONZ. L. REV. 891 (1979).

Foutz Frey, Torts - Wrongful Life - Infant's Rights to Suefor Negligent Genetic Counseling, 48 TENN. L. REV. 493(1981).


Robert A. Guttman, Note, Trends in Recognition of FutureChild Rearing Expenses in Wrongful Conception Actions, 8J. Juv. L. 178 (1984).

Robert A. Guttman, Note, Wrongful Life: A FinallyRecognized Tort, 8 J. Juv. L. 127 (1984).

Thomas Keasler, Comment, Wrongful Life: The Right Notto be Born, 54 TUL. L. REV. 480 (1980).

Patrick J. Kelly, Wrongful Life, Wrongful Birth and Justicein Tort Law, 1979 WASH. U. L.Q. 919 (1979).

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Bernadette Kennedy, Comment, The Trend TowardJudicial Recognition of Wrongful Life: A Dissenting View,31 U.C.L.A. L. REV. 473 (1983).

Patrick M. Lavette, Note, Boone v. Mullendore: Confusionof Actions in Wrongful Life, Wrongful Birth, and WrongfulPregnancy, 35 ALA. L.REV. 179 (1984).

Alice P. League, Note, Wrongful Birth: Fact PatternsGiving Rise to Causes of Action Distinguished andDiscussed, 4 HAMvaE L. REV. 59 (1980).

Deborah M. Lux, Comment, Damages for the WrongfulBirth of Healthy Babies, 21 DUQ. L. REV. 605 (1983).

A.N.M., Note, Judicial Limitations on DamagesRecoverable for the Wrongful Birth of a Healthy Infant, 68VA. L. REV. 1311 (1982).

Dennis J. McCann, Comment, Liability for NegligentPrenatal Diagnosis: Parents' Right to a 'Perfect' Child?, 42OHIO ST. L.J. 551 (1981).

Jeff L. Milsteen, Comment, Recovery of ChildrearingExpenses in Wrongful Birth Cases: A MotivationalAnalysis, 32 EMORY L.J. 1167 (1983).

Note, Wrongful Birth Actions: The Case Against LegislativeCurtailment, 100 HARV. L. REV. 2017 (1987).

David H. Pace, The Treatment of Injury in Wrongful LifeClaims, 20 COLUM. J.L. & Soc. PROBS. 145 (1986).

Regina G. Paul, Note, Damages for Wrongful Birth andWrongful Pregnancy in Illinois, 15 Loy. U. CHI. L.J. 799(1984).

Horace B. Robertson, Jr., Toward Rational Boundaries ofTort Liability for Injury to the Unborn: Prenatal Injuries,Preconception Injuries and Wrongful Life, 1978 DUKE L.J.1401 (1978).


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Rogers, Wrongful Life and Wrongful Birth: MedicalMalpractice in Genetic Counseling and Prenatal Testing, 31DEF. L.J. 555 (1982).

John Scheid, Benefits vs. Burdens: The Limitations ofDamages in Wrongful Birth, 23 J. FAM. L. 57 (1984-85).

Benjamin B. Sendor, Comment, Medical Responsibility forFetal Survival under Roe and Doe, 10 HARv. C.R.-C.L. L.REV. 444 (1975).

Margeru W. Shaw, Genetically Defective Children:Emerging Legal Considerations, 3 Am. J.L. & MED. 333(1977).

Snyderman, Wrongful Life and Wrongful Birth Claims:Judicial Recognition and Acceptance, 32 MED. TR. T.Q. 15(1985).

Richard E. Tedeschi, On Tort Liability for Wrongful Life', 1ISRAEL L. REV. 513 (1966).

Tomlinson, Torts-Wrongful Birth and Wrongful Life, 44Mo. L. REV. 167 (1979).

Wilbur L. Tomlinson, Comment, Wrongful Birth andWrongful Life, 44 Mo. L. REV. 167 (1979).

Martin A. Trotzig, The Defective Child and the Actions forWrongful Life and Wrongful Birth, 14 FAM. L.Q. 151 (1980).

Valentine, When the Law Calls Life Wrong, 8 HuM. LIFE

REV. 46 (1982).

Richard E. Wolff, Wrongful Life: A Modern Claim WhichConforms to the Traditional Tort Framework, 20 WM. &MARY L. REV. 125 (1978).

5. WRONGFUL BIRTH

A. AM. JuR. PROOF OF FACTS

18 AM. JUR. P.O.F.2D Obstetrical Malpractice 187 (1967).

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22 AM. JUR. P.O.F.2D Medical Malpractice - Use ofHospital Records 1 (1969).

33 AM. JuR. P.O.F.2D Qualification of Medical Expert

Witness 179 (183).

B. AM. JUR.

61 AM. JUR. 2D Physicians, Surgeons, and Other Healers§ 163 (1981).

61 AM. JUR. 2D Physician's Duty of Care, and Liability forMedical Malpractice § 200 (1981).

62A AM. JUR. 2D 393 (Supp.).

C. AM. JUR. TRIALS

2 AM. JUiR. TRIALS Locating Medical Experts 357 (1966).


15 AM. JUR. TIALS Discovery and Evaluation of MedicalRecords 373 (1968).

16 AM. JUm. TiRIALs Defense of Medical Malpractice Cases471 (1969).

19 AM. JUR. TRILs Defending Hospital - Negligence ofPhysician-Employee 431 (1972).

21 AM. JUR. TRIALs Determining the Medical and Emotional



D. ANNOTATIONS

William B. Johnson, Annotation, Recovery AgainstPhysician on Basis of Breach of Contract to AchieveParticular Result or Cure, 43 A.L.R. 3D 1221 (1972).


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W.E. Shipley, Annotation, Liability of Physician or Surgeonfor Injury to Child in Pregnancy and Childbirth Cases, 99A.L.R. 2D 1398 (1965).

Gregory G. Sarne, Annotation, Recoverability ofCompensatory Damages for Mental Anguish or EmotionalDistress for Tortiously Causing Another's Birth, 74 A.L.R.4TH 798 (1985).

Gregory C. Sarno, Annotation, Tort Liability for WrongfullyCausing One to be Born, 83 A.L.R. 3D 15 (1978).


Mark E. Cohen, Park v. Chessin: The Continuing JudicialDevelopment of the Theory of 'Wrongful Life', 4 AM. J.L. &MED. 211 (1979).

Elizabeth Collins, An Overview and Analysis: PrenatalTorts, Preconception Torts, Wrongful Life, Wrongful Death,and Wrongful Birth: Time for a New Framework, 22 J.FAM. L. 677 (1983-84).

Gary R. Dorst, Comment, Wrongful Life: A TortResuscitated, 7 AM. J. TRIAL ADvoc. 167 (1983).


Robert A. Guttman, Note, Trends in Recognition of FutureChild Rearing Expenses in Wrongful Conception Actions, 8J. Juv. L. 178 (1984).

Gerald B. Robertson, Civil Liability Arising From 'WrongfulBirth' Following an Unsuccessful Sterilization Operation, 4AM. J.L. & MED. 131 (1978).

John H. Scheid, Benefits vs. Burdens: The Limitations ofDamages in Wrongful Birth, 23 J. FAM. L. 57 (1984-85).

Snyderman, Wrongful Life and Wrongful Birth Claims:Judicial Recognition and Acceptance, 32 MED. TR. T.Q. 15(1985).

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Joyce E. Barrett, Damages for Wrongful Birth, 21 CLEV. ST.

L. REV. 34 (1972).



Norman M. Block, Birth: The Avoidance of ConsequencesDoctrine in Mitigation of Damages, 53 FORDHAM L. REV.1107 (1985).

Norman M. Block, Note, Wrongful Birth: The Avoidance ofConsequences Doctrine in Mitigation of Damages, 53FoRDHAm L. REV. 1107, 1114-15 (1985).

J. Bopp, Jr., The "Rights" and "Wrongs" of Wrongful Birthand Wrongful Life: A Jurisprudential Analysis of BirthRelated Torts, 27 DUQ. L. REV. 461 (1989).

John R. Brantley, Comment, Wrongful Birth: TheEmerging Status of a New Tort, 8 ST. MARY'S L.J. 140(1976).

Phillip Braverman, Note, Wrongful Conception: Who Paysfor Bringing Up Baby?, 47 FoRDHAM L. REV. 418, 428(1978).

Deidra A. Burgman, Note, Wrongful Birth Damages:Mandate and Mishandling by Judicial Fiat, 13 VAL. U. L.REV. 127 (1978).



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James L. Donovan, Jr., Comment, Wrongful Birth andWrongful Life: Questions of Public Policy, 28 Loy. L. REV.77 (1982).

Danna Fogarty-Brabender, Comment, Wrongful Birth,'Should Liability Be Imposed Upon a Physician Who Fails toWarn Parents of the Risks of Defects in Their UnbornChildren?, 14 GONZ. L. REV. 891 (1979).


Edward J. Goss, Comment, Strict Liability: A 'Lady inWaiting' for Wrongful Birth Cases, 11 CAL. W. L. REV. 136(1974).


Belinda L. Kimble, Wrongful Birth: A Practitioner's Guideto a New Arrival, 55 ALA. L. REV. 84 (1994).

Alice P. League, Note, Wrongful Birth: Fact PatternsGiving Rise to Cause of Action Distinguished andDiscussed, 4 HAMLINE L. REV. 59 (1980).

Patrick M. Levette, Note, Boone v. Mullendore: Confusionof Actions in Wrongful Life, Wrongful Birth, and WrongfulPregnancy, 35 ALA. L. REV. 179 (1984).


Dennis J. McCann, Comment, Liability for NegligentPrenatal Diagnosis: Parents' Right to a 'Perfect' Child?, 42OHIO ST. L.J. 551 (1981).

Brian McDonough, Comment, Wrongful Birth: A Child ofTort Comes of Age, 50 U. CIN. L. REV. 65 (1981).


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Amy N. Moore, Note, Judicial Limitations on DamagesRecoverable for the Wrongful Birth of a Healthy Infant, 68VA. L. REV. 1311 (1982).


Thomas D. Rogers, III., Wrongful Life and Wrongful Birth:Medical Malpractice in Genetic Counseling and PrenatalTesting, 33 S.C. L. REV. 713 (1982).

Thomas DeWitt Rogers, III, Wrongful Life and WrongfulBirth: Medical Malpractice in Genetic Counseling anndPrenatal Testing, 31 DEF. L.J. 555 (1982).

Benjamin B. Sendor, Comment, Medical Responsibility forFetal Survival under Roe and Doe, 10 HARV. C.R.-C.L. L.REV. 444 (1975).

Keng Geng Tan Note, Torts - Wrongful Birth andWrongful Life, 44 Mo. L. REV. 167, 173 (1979).

Thayer, Liability to a Family for Negligence Resulting in theConception and Birth of a Child, 14 ARIz. L. REV. 181(1972).

Tomlinson, Torts-Wrongful Birth and Wrongful Life, 44Mo. L. REV. 167 (1979).

Note, Wrongful Birth Actions: The Case Against LegislativeCurtailment, 100 HARV. L. REV. 2017 (1987).

Comment, Wrongful Birth and Wrongful Life, 44 Mo. L.

REV. 167 (1979).

6. WRONGFUL CONCEPTION

A. AM. JUR. PRoof of FACTS

18 AM. JUR. P.O.F. Obstetrical Malpractice 187 (1967).

22 AM. JuR. P.O.F.2D Medical Malpractice - Use ofHospital Records 1 (1980).

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33 Am. JuR. P.O.F.2D Qualification of Medical ExpertWitness 179 (1983).

B. AM. JuR.

61 AM. JuR. 2D Physician's Duty of Care, and Liability forMedical Malpractice § 200 (1981).

62A AM. JUR. 2D § 393 (Supp.).

C. AM. JUR. TRIALs



6 AM. JUR. TRIALS Collateral Cross-Examination of MedicalWitness 423 (1967).

15 AM. Ju. TRIALS Discovery and Evaluation of MedicalRecords 373 (1968).

16 AM. JUR. TRIALS Defense of Medical Malpractice Cases471 (1969).

19 AM. JUR. TRIALS Defending Hospital - Negligence ofPhysician-Employee 431 (1972).

21 AM. JUR. TRIALS Determining the Medical and Emotional



D. ANNOTATIONS

William B. Johnson, Annotation, Recovery AgainstPhysician on Basis of Breach of Contract to AchieveParticular Result or Cure, 43 A.L.R. 3D 1221 (1972).


W.E. Shipley, Annotation, Liability of Physician or Surgeonfor Injury to Child in Pregnancy and Childbirth Cases, 99A.L.R. 2D 1398 (1965).

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Elizabeth F. Collins, An Overview and Analysis: PrenatalTorts, Preconception Torts, Wrongful Life, Wrongful Death,and Wrongful Birth: Time for a New Framework, 22 J.FAM. L. 677 (1983-84).

Gary Dorst, Comment, Wrongful Life: A Tort Resuscitated,7 Am. J. TRIAL ADvoc. 167 (1983).


John H. Scheid, Benefits vs. Burdens: The Limitations ofDamages in Wrongful Birth, 23 J. FAM. L. 57 (1984-85).


Joyce E. Barrett, Damages for Wrongful Birth, 21 CLEV. ST.L. REV. 34 (1972).



Phillip Braverman, Note, Wrongful Conception: Who Paysfor Bringing Up Baby?, 47 FoRDHAm L. REV. 418 (1978).


Martine Carroll, Note, Recovery for Wrongful Conception:Who Gets the Benefit-The Parents or the Public, 14 NEWENG. L. REV. 784 (1979).


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James L. Donovan, Comment, Wrongful Birth andWrongful Life: Questions of Public Policy, 28 Loy. L. REV.77 (1982).


James B. Harrison, Note, Wrongful Pregnancy: Recoveryfor Raising a Healthy Child, 10 N. Ky. L. REV. 341 (1983).

Donna K. Holt, Wrongful Pregnancy, 33 S.C. L. REV. 759(1982).

Renee M. Horn, Wrongful Conception: North Carolina'sNewest Prenatal Tort Claim - Jackson v. Bumgardner, 65N.C. L. REV. 1077 (1987).


Alice P. League, Note, Wrongful Birth: Fact PatternsGiving Rise to Causes of Action Distinguished andDiscussed, 4 HAMLINE L. REV. 59 (1980).

Patrick M. Levatte, Note, Boone v. Mullendore: Confusionof Actions in Wrongful Life, Wrongful Birth, and WrongfulPregnancy, 35 ALA. L. REV. 179 (1984).


David J. Mark, Comment, Liability for Failure of BirthControl Methods, 76 COLUM. L. REV. 1187 (1976).


Amy N. Moore, Note, Judicial Limitations on DamagesRecoverable for the Wrongful Birth of a Healthy Infant, 68VA. L. REV. 1311 (1982).

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R.J.L., Note, The Birth of a Child Following an IneffectiveSterilization Operation as Legal Damage, 9 UTAH L. REV.808, 811 n. 14 (1965).


Benjamin D. Sendor, Comment, Medical Responsibility forFetal Survival under Roe and Doe, 10 HARV. C.R.-C.L. L.REV. 444 (1975).

Donald R. Thayer, Liability to a Family for NegligenceResulting in the Conception and Birth of a Child, 14 ARIz.L. REV. 181 (1972).

Nancy L. White, Note, Flowers v. District of Columbia:Another Court Refuses to Settle the Question of Damages inWrongful Conception Case, 34 CATH. U. L. REV. 1209, 1212-24 (1985).

Note, Wrongful Birth Actions: The Case Against Legislative

Curtailment, 100 HARv. L. REV. 2017 (1987).

7. FORMS

A. Am. JuR. PRoof of FACTS

4 AM. JUR. P.O.F.2D Physician's Guarantee of MedicalResults 333 (1975).

7 AM. Jur. P.O.F.2D Failure to Diagnose Pregnancy 579(1975).

19 AM. Jur. P.O.F.2D Malpractice Liability in GeneticCounseling 485 (1979).

21 AM. Jur. P.O.F.2D Side Effects of Drugs 1 (1968).

21 AM. Jur. P.O.F.2D Sexual Sterilization 255 (1968).

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41 AM. Jur. P.O.F.2D Trauma in Pregnancy 1 (1985).

49 Am. Jur. P.O.F.2D Damages for Wrongful Death of Child191 (1987).

B. AM. JuR.

8 AM. JuR. PL. & PR. FORMS Damages 1 (1982 rev. ed.)(containing forms on allegations of damages in personalinjury actions).

8 AM. JUR. PL. & PR. FORMS Death 47-48 (1982 rev. ed.)(containing complaints involving wrongful death of child,loss of support, and the loss of assistance and income of aminor child).

8 AM. JUR. PL. & PR. FORMS Death 181-185 (1982 rev. ed.)(containing forms on recoverable losses in case of wrongfuldeath of minor child).

8 AM. JUR. PL. & PR. FORMS Instructions to Jury-Damages202-03 (1982 rev. ed) (recovery for pain and suffering), 204-205 (recovery for mental suffering).

13 AM. JUR. PL. & PR. FORMS Hospitals and Asylums 43-44.1 (1982 rev. ed.) (containing forms on improper care anddiagnosis in emergency room, wrongful death due to failureto provide care and treatment in emergency wardon, and onaggravation of an injury due to failure to provide care andtreatment in emergency room).

13 AM. JUR. PL. & PR. FoRMs Hospitals and Asylums 52(1982 rev. ed.) (containing interrogatories as to emergencytreatment by hospital).

19A AM. JuR. PL. & PR. FoRMs Physicians, Surgeons, andOther Healers 121 et. seq. (1985) (containing complaintsand other forms in medical malpractice actions).

19A AM. JuR. PL. & PR. FoRMs Physicians, Surgeons, andOther Healers 124 (1982 rev. ed.) (containing forms ondefendant physician as agent and employee of defendanthospital while performing negligent acts).

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19A AM. JuR. PL. & PR. FoRms Physicians, Surgeons, andOther Healers 141, 144 (1982 rev. ed.) (containing formsregarding general practitioner's failure to exercise orpossess required degree of skill, care, and learning undernational standard of care, and regarding specialists whofailed to exercise or possess required degree of skill, care,and learning).

19A AM. JUR. PL. & PR. FoRms Physicians, Surgeons, andOther Healers 327 (1982 rev. ed.) (containing complaint,petition, or declaration, wrongful death of unborn viablefetus).

19A AM. JuR. PL. & PR. FoRms Physicians, Surgeons, andOther Healers 411 (1982 rev. ed.) (containing forms onplaintiff's burden of proof in malpractice action).

20 AM. JUR. PL. & PR. FoRMs Prenatal Injuries 1 et. seq.(1982 rev. ed.) (containing complaints and other forms inactions involving prenatal injuries).

20 AM. JUR. PL. & PR. FoRMs Prenatal Injuries 1 (1982 rev.ed.) (containing complaint, petition, or declaration forsurviving child's recover for prenatal injuries to viable fetusresulting from negligence of physician).

20 AM. JuR. PL. & PR. FoRms Prenatal Injuries 2 (1982 rev.ed.) (containing complaint, petition, or declaration torecover for prenatal injuries to surviving child resultingfrom exposure to disease through negligence of physician).

20 AM. JuR. PL. & PR. FoRMs Prenatal Injuries 5 (1982 rev.ed.)(containing complaint, petition, or declaration forsurviving child's recovery for prenatal injuries of viablefetus resulting from administration of diethylstilbestrol(DES) during mother's pregnancy by surviving child).

20 AM. JUR. PL. & PR. FoRMs Prenatal Injuries 11 (1982rev. ed.) (containing complaint in federal court - diversity ofcitizenship, recovering for wrongful death of unborn viablechild).

20 AM. JUR. PL. & PR. FORMS Prenatal Injuries 12 (1982rev. ed.) (containing complaint in federal court under the

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Federal Tort Claims Act for surviving child's recovery forprenatal injuries).

20 AM. JUR. PL. & PR. FORMS Prenatal Injuries 16 (1982rev. ed.) (containing instruction to jury regardingcontributory or comparative negligence of parents notimputed to child).

20 AM. JuR. PL. & PR. FoRMS Prenatal Injuries 18 (1982rev. ed.) (containing instruction to jury on measure ofdamages in a recovery for disfigurement).

8. RELATED AREAS

A. AM. JuR.

42 AM. JuR. 2d Infants § 2.


T. ENGLEHARDT, THE FOUNDATIONS OF BIOETHICS 104(1986).

FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW:

HARMLESS WRONGDOING 25-28 (1988).

M. FURUHJALEM ET AL., A CHILD Is BORN (1976).

LEONARD H. GLANTz, Is THE FETUS A PERSON? A LAWYER'S

VIEW, IN ABORTION AND THE STATUS OF THE FETUS 114(1988).

C. GROBSTEIN, SCIENCE AND THE UNBORN 58-62 (1988).

J. ROSENBLITH & J. SIMS-KNIGHT, IN THE BEGINNING:DEVELOPMENT IN THE FIRST Two YEARS OF LIFE 31-42(1985).

R. SCOTT, THE ETHICS OF FETAL RESEARCH, THE BODY ASPROPERTY 37 (1981).

TANNER, FETUS INTO MAN, PHYSICAL GROWTH FROM

CONCEPTION TO MATURITY (1989).

T. VERNY & J. KELLY, THE SECRET LIFE OF THE UNBORN

CHILD 15-2 (1981).

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M. WARREN, GENDERCIDE: THE IMPLICATIONS OF SEX

SELECTION (1985).

Annas, The Ethics of Embryo Research: Not as Easy as ItSounds, 14 LAw, MED. & HEALTH CARE 138, 139-40 (1986).

Charles H. Baron, If You Prick Us, Do We Not Bleed?: OfShylock, Fetuses, and the Concept of Person in the Law, 11LAW, MED. & HEALTH CARE 52 (1982).

Brobstein, The Early Development of Human Embryos, 10J. MED. & PHIL. 213, 214 (1985).

Buckle, Dawson & Singer, The Syngamy Debate: WhenPrecisely Does a Human Life Begin?, 17 LAW, MED. &HEALTH CARE 174 (1989).

William J. Curran, A Historical Perspective on the Law ofPersonality and Status with Special Regard to the HumanFetus and the Rights of Women, 61 MILBANK MEMORIALFuND Q. 58, 59 (1983).

Delayed Childbearing and Risk of Adverse PerinatalOutcome: A Population-based Study, 268 JAMA 886 (1992).

Erickson, Reproduction and the Law, 32 MED. TR. T. Q. 165(Fall 1985).

Fetal Abnormality and Audit of its Recognition andManagement, 67 ARCH. DIs. CHILD 7:770 (1992).

Fletcher & Ryan, Federal Regulations for Fetal Research: ACase for Reform, 15 LAw, MED. & HEALTH CARE 126-28(1987).

Fletcher & Schulman, Fetal Research: The State of theQuestion, 15 HASTINGS CENTER REP. 6 (1985).

Clifford Grobstein, The Moral Uses of "Spare" Embryos, 12HASTINGS CENTER REP. (1982).

Jansen, Sperm and Ova as Property, 11 J. MED. ETHICS 123(1985).

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Jones & Schrader, And Just What Is a Pre-embryo?, 52FERTILITY & STERILITY 189 (1989).

Legal Dimensions of Maternal-Fetal Conflict, 35 CLIN.OBSTET. GYNECOL. 4:738 (1992).

Jeffrey L. Lenow, The Fetus as a Patient: Emerging Rightsas a Person?, 9 AM. J.L. & MED. 1, 2 (1983).

Mama vs. Fetus, 39 MED. TR. TECH. Q. 536 (1993).

Patricia A. Martin & Martin L. Lagod, The HumanPreembryo, the Progenitors, and the State: Toward aDynamic Theory of Status, Rights, and Research Policy, 5HIGH TECH. L.J. 257 (1990).

Medicine of the Fetus and Mother, 327 N. ENGL. J. MED.0:1958 (1992).

Milby, The New Biology and the Question of Personhood:Implications for Abortion, 9 AM. J.L. & MED. 31, 32-33(1983).

Deborah Mathica, Preventing Prenatal Harm: Should theState Intervene? 103 ETHICS 852 (1993).

Regulation of Experimentation on the Unborn, 14 J. LEG.

MED. 25 (1993).

Robertson, Extracorporeal Embryos and the AbortionDebate, 2 J. CONTEMP. HEATH LAw & POL'Y 53 (1986).

Robertson, Gestational Burdens and Fetal Status:Justifying Roe v. Wade, 13 AM. J.L. & MED. 189 (1987).

Margery W. Shaw, Conditional Prospective Rights of theFetus, 5 J. LEGAL MED. 63 (1984).

Singer & Kuhse, The Ethics of Embryo Research, 14 LAw,MED. & HEALTH CARE 133, 137 (1986).

To Save a Fetus, Should A Brain-Dead Woman Be KeptAlive?, 12 HASTINGS CENTER REP. 3 (1982).

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Deborah K. Walther, "Ownership" of the Fertilized Ovum inVitro, 26 FAM. L.Q. 235 (1992).

Warren, Maguire, & Levine, Can the Fetus be an OrganFarm?, HASTINGS CENTER REP. (1978).

Lori B. Andrews, The Legal Status of the Embryo, 32 Loy.L. REV. 357 (1986).

Kevin M. Apollo, Comment, The Biological Father's Right toRequire a Pregnant Woman to Undergo Medical TreatmentNecessary to Sustain Fetal Life, 94 DICK. L. REV. 199 (1989).

Ellen Bigge, The Fetal Rights Controversy: A Resurfacing ofSex Discrimination in the Guise of Fetal Protection, 57UMKC L. REV. 261 (1989).

Stephanie L. Black, Comment, Competing Interests in theFetus: A Look Into Paternal Rights After PlannedParenthood v. Casey, 28 WAKE FOREST L. REV. 987 (1993).

Marilyn J. Clapp, Note, State Prohibition of FetalExperimentation and the Fundamental Right of Privacy, 88COLUM. L. REV. 1073 (1988).

Karen G. Crockett & Miriam Hyman, Live Birth: ACondition Precedent to Recognition of Rights, 4 HOFSTRA L.REV. 805 (1976).

Robert A. Destrot, Symposium, On the Report andRecommendations of the National Commission for theProtection of Human Subjects of Biomedical and BehavioralResearch: Research on the Fetus, 22 VILL. L. REV. 297(1977).

Richard P. Dickey, The Medical Status of the Embryo, 32Loy. L. REV. 317 (1986).

William Diller, Note, The Unborn Child: Consistency in theLaw?, 2 SUFFOLK U.L. REV. 228 (1968).

Barbara Gregoratos, Symposium, Tempest in theLaboratory: Medical Research on Spare Embryos From inVitro Fertilization, 37 HASTINGS L. J. 977 (1986).

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Louise Van Dyck, The Costs of Fetal Protection, 23 CoN. L.REV. 1049 (1991).

Gary L. Reback, Note, Fetal Experimentation: Moral,Legal, and Medical Implications, 26 STAN. L. REV. 1191(1974).

Nancy E. Field, Evolving Conceptualizations of Property: AProposal to Decommercialize The Value of Fetal Tissue, 99YALE L.J. 169 (1989).

Jane M. Friedman, Legal Implications of Amniocentesis,123 U. PA. L. REV. 92 (1974).

Janet Gallagher, Prenatal Invasions and Interventions:What's Wrong with Fetal Rights, 10 HARv. WOMEN'S L.J. 9(1986).

David A. Gordon, The Unborn Plaintiff, 63 MICH. L. REV.

579, 589 (1965).

Tracy L. Hamrick, A Clear Judicial Day is North Carolina- Johnson v. Ruark Obstetrics Smooths The Way forPlaintiffs' Claims for Negligent Infliction of EmotionalDistress, 69 N.C. L. REV. 1714 (1991).

Roy Hardman, Note, Toward the Right of Commerciality:Recognizing Rights in the Commercial Value of HumanTissue, 34 U.C.L.A. L. REV. 207 (1986).

Theodore M. Hess-Mahan, Note, Human Fetal TissueTransplantation Research: Entering a Brave New World,23 SUFFOLK U.L. REV. 789 (1989).

Dawn E. Johnson, Note, The Creation of Fetal Rights:Conflicts with Women's Constitutional Rights to Liberty,Privacy, and Equal Protection, 95 YALE L.J. 599 (1986).

James M. Jordan, Note, Incumbating For The State: ThePrecarious Autonomy of Persistently Vegetative and Brain-Dead Pregnant Women, 22 GA. L. REV. 1103 (1988).

Patricia A. King, The Juridical Status of the Fetus: AProposal for Legal Protection of the Unborn, 77 MICH. L.REV. 1647 (1979).

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Katherine A. Knopoff, Can A Pregnant Woman MorallyRefuse Fetal Surgery?, 79 CALIF. L. REV. 499 (1991).

William J. Maledon, Note, The Law and the Unborn Child:The Legal and Logical Inconsistencies, 46 NOTRE DAME L.REV. 349 (1971).

David J. Mark, Comment, Liability for Failure of BirthControl Methods, 76 COLUM. L. REV. 1187 (1976).

Beth D. Osowski, The Need for Logic and Consistency inFetal Rights, 68 N.D. L. REV. 171 (1992).

Jeffrey A. Parness & Susan K. Pritchard, To Be or Not toBe: Protecting the Unborn's Potentiality of Life, 51 U. CIN.

L. REV. 257 (1982).

Patterson, Human Rights and Human Life: An Uneven Fit,68 RUL. L. REV. 1527 (1994).

Jeffrey P. Phelan, The Maternal Abdominal Wall: AFortress Against Fetal Health Care?, 65 S. CAL. L. REV. 461(1991).

Margaret J. Radin, Property and Personhood, 34 STAN. L.REV. 957 (1982).

Note, Rights of Unborn Children in the Law of Torts, 34HARV. L. REV. 549 (1921).

John A. Robertson, Fetal Tissue Transplants, 66 WASH. U.L.Q. 443 (1988).

John A. Robertson, Procreative Liberty and the Control ofConception, Pregnancy, and Childbirth, 69 VA. L. REV. 405(1983).

John A. Robertson, The Scientist's Right to Research: AConstitutional Analysis, 51 S. CAL. L. REV. 1203 (1977).

Robertson, Embryo Research, 24 W. ONTARIo L. REV. 15(1986).

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Kim Schaefer, Comment, In-vitro Fertilization, FrozenEmbryos, and The Right to Privacy-Are MandatoryDonation Laws Constitutional? 22 PAC. L.J. 87 (1990).

Shannon K. Such, Note, Lifesaving Medical Treatment forthe Nonviable Fetus: Limitations on State Authority UnderRoe v. Wade, 54 FoRDHAm L. REV. 961 (1986).

Nicholas P. Terry, "Alas! Poor Yorick," I Knew Him ExUtero: The Regulation of Embryo and FetalExperimentation and Disposal In England and the UnitedStates, 39 VAND. L. REV. 419 (1986).

Robin M. Trindel, Fetal Interests v. Maternal Rights: Is TheState Going Too Far?, 24 AKRON L. REV. 743 (1991).

William Diller, Note, The Unborn Child: Consistency in theLaw, 2 SUFFOLK U.L. REV. 228 (1968).

Heather M. White, Comment, Unborn Child: Can You BeProtected?, 22 U. RICH. L. REV. 285 (1988).

P.H. Winfield, Note, The Unborn Child, 8 CAm. L.J. 76(1944).

Marcia J. Wurmbrand, Note, Frozen Embryos: Moral,Social, and Legal Implications, 59 S. CAL. L. REV. 1079(1986).

Clark, Should Medicine Use the Unborn? The Debate HeatsUp Over Embryo Research, Newsweek, Sept. 14, 1987.

David Dickson, Europe Split on Embryo Research, 242Science 1117-18 (1988).

Drama of Life Before Birth, Life, Apr. 30, 1965.

A. Gorman, Balancing Act of Life and Death, Time, Feb. 1,1988.

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9. INSURANCE

A. ANNOTATIONS

Wanda Wakefield, Annotation, Unborn Child as Insured orInjured Person Within Meaning of Insurance Policy, 15A.L.R. 4TH 548 (1982).


William Vander Wel, Insurance-Parents of an Unborn ButViable Fetus Can Maintain an Action For Loss ofConsortium Under the Uninsured Motorist Provisions ofTheir Automobile Insurance Policy Upon the Death of TheirChild-Craig v. IMT Insurance Co., 27 DRAKE L. REV. 731(1988).

10. CRIMINAL LAW

I. CRIMINAL LAW: PRACTICE NOTES:The defendant charged with a violation of section 14-44 of the

North Carolina General Statutes406 should focus on the issue ofquickening if the death of the fetus was early in the pregnancy.The State bears the burden of proof beyond a reasonable doubt onthis issue, and given the rather ambiguous nature of the legalconcept of quickening, this is one of the more promising defensesin such a case. Such proof becomes even more difficult when themother has also died, as she is the best evidence of when she couldfeel the child moving in the womb.

Another possible defense would be to assert that section 14-44 of the North Carolina General Statutes is unconstitutionallyvague, under both the North Carolina and United StatesConstitutions. The statute applies only to the killing of aquickened fetus. This term is inherently ambiguous as its usedoes not positively fix a moment in time that can be readilyascertained. It is also a highly subjective standard as the motheris going to be the only reliable evidence as to when she first feltthe baby move within her. Thus, it is conceivable that the statutecould support a conviction for killing the fetus at ten weeksgestation in one case, but not for the same act at fifteen weeksgestation. Alternatively, of two men who kill separate fetuses of

406. Given Beale, it is assumed that no prosecutor could, in good faith, bring anindictment for murder for the killing of an unborn child.

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exactly the same gestational age, one may go free and the othermay not based solely on a standard of proof that relies almostentirely on the mother of the victim. Moreover, the termquickened is largely a term of legal art and cannot be said to havemeaning to the average person. Counsel can argue that thestatute does not provide true notice of what actions willconsititute a crime under its language.

II. Criminal Law: Bibliography:

A. Am. Jur.

1 AM. JuR. 2d Abortion §§ 15 (1994).

40 AM. JUR. 2d Homicide § 9 (1994).

B. ANNOTATIONS

Francis M. Daugherty, Annotation, Homicide: Sufficiencyof Evidence of Mother's Neglect of Infant Born Alive, inMinutes or Hours Immediately Following UnattendedBirth, to Establish Culpable Homicide, 40 A.L.R. 4TH 724(1985).

R.P. Davis, Annotation, Corpus Delicti in Prosecution forKilling of Newborn Child, 159 A.L.R. 523 (1975).

Donald C. Barrett, Annotation, Homicide Predicated onImproper Treatment of Disease or Injury, 45 A.L.R. 3D 114(1972).

R.B. Kaman, Annotation, Necessity, to Warrant Convictionof Abortion, That Fetus be Living at Time of Commission ofActs, 16 A.L.R. 2D 949 (1951).

Annotation, Homicide Based on Killing of Unborn Child, 40A.L.R. 3D 444 (1976).

C. PUBLICATIONSIARTICLES

Russell S. Kirby, Coding of Underlying Cause of Death fromFetal Death Certificates: Issues and Policy Considerations,83 AM. J. PUBLIC HEALTH 8:1088 (1993).

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Ginia M. Dabiri, Prenatal Drug Exposure: TheConstitutional Implications of Three GovernmentalApproaches, 2 SETON HALL CONST. L.J. 53 (1991).

Sonja C. Davig, Current Public Law and Policy Issue,Crack-Cocaine Babies: Protecting Society's InnocentVictims, 15 HAMLINE J. PUB. L. & POL'Y 281 (Spring 1994).

Donovan, When Does Personhood Begin?, 15 FAM. PLAN.

PERSP. 40 (1983).

Michael T. Flannery, Court-Ordered Prenatal Intervention:A Final Means To The End of Gestational Substance Abuse,30 J. FAM. L. 519 (1992).

Dawn Johnson, Substance Use During Pregnancy: Legaland Social Responses Shares Interests: Promoting HealthyBirths Without Sacrificing Women's Liberty, 43 HASTINGS

L.J. 569 (1992).

Jones, Fetal Brain Waves and Personhood, 10 J. MED.ETHICS 216 (1984).

Paul A. Logli, The Prosecutor's Role in Solving the Problemsof Prenatal Drug Use and Substance Abused Children, 43HAST. L.J. 559 (1992).

Maternal, Placental, and Fetal Pathophysiology of CocaineExposure During Pregnancy, 36 CLIN. OBSTET. GYNECOL.

2:267 (1993).

Janna C. Merrick, Maternal Substance Abuse DuringPregnancy: Policy Implications in the United States, 14 J.LEG. MED. 57 (1993).

Molly McNulty, Pregnancy Policy: The Health Policy andLegal Implications of Punishing Pregnant Women for Harmto Their Fetuses, 16 N.Y.U. REV. L. & Soc. CHANGE 277(1988).

Michelle Oberman, Sex, Drugs, Pregnancy, and the Law:Rethinking the Problems of Pregnant Women Who UseDrugs, 43 HAST. L.J. 505 (1992).

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Lauranie Slutsker, Recognizing Illicit Drug Use byPregnant Women Reports from Oregon Birth Attendants, 83AM. J. PUBLIC HEALTH 1:61 (1993).

Susan E. Rippey, Criminalizing Substance Abuse DuringPregnancy, 17 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT

69 (1991).

Louise E. Abbis, Comment, The Innocent Addicts, 31 SANTACLARA L. REV. 1087 (1991).

Kristin Barrett, Note, Prosecuting Pregnant Addicts forDealing To The Unborn, 33 ARiz. L. REV. 221 (1991).

Louis D. Bilinois, Liberty, The "Law of the Land, AndAbortion in North Carolina, 71 N.C. L. REV. 1839 (1993).

Charles R. Burton, IV, Fetal Drug or Alcohol AddictionSyndrome: A Case of Prenatal Child Abuse?, 25WILLAMETTE L. REV. 223 (1989).

James Denison, Note, The Efficacy and Constitutionality ofCriminal Punishment for Maternal Substance Abuse, 64 S.CAL. L. REV. 1103 (1991).

Clark D. Forsythe, Homicide of the Unborn Child: TheBorn Alive Rule and Other Legal Anachronisms, 21 VAL. U.L. REV. 563, 576 (1987).

Shona B. Glink, Note, The Prosecution of Maternal FetalAbuse: Is This The Answer?, 1991 U. ILL. L. REV. 533(1991).

Michael A. Hammer, Comment, The Constitutional,Judicial and Social Pitfalls Attendant to theCriminalization of Prenatal Maternal Substance Abuse: APlea for Governmental Uniformity and Mercy, 22 SETON

HALL L. REV. 1456 (1992).

Judith Kahn, Note, Of Woman's First Disobedience:Forsaking a Duty of Care to Her Fetus-Is This a Mother'sCrime?, 53 BROOK. L. REV. 807 (1987).

Dawn M. Korver, Note, The Constitutionality of PunishingPregnant Substance Abusers Under Drug Trafficking Laws:

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The Criminalization of a Bodily Function, 32 B.C. L. REV.629 (1991).

Catherine A. Kyres, Note, A "Cracked" Image of MyMother/Myself? The Need For a Legislative DirectiveProscribing Maternal Drug Abuse, 25 NEW ENG. L. REV.1325 (1991).

Note, Maternal Rights and Fetal Wrongs: The Case Againstthe Criminalization of "Fetal Abuse", 101 HARV. L. REV. 994(1988).

Timothy S. McBride, Criminal Law-Should StatesCriminally Prosecute Mothers for Delivering Drugs to TheirNewborns During the Birthing Process?--Johnson v. State,27 SUFFOLK U. L. REV. 251 (1993).

Means, The Law of New York Concerning Abortion and theStatus of the Fetus, 1664-1968: A Case of Cessation ofConstitutionality, 14 N.Y. L. J. 411 (1968).

Howard J. Levine, Note, The Non-Consensual Killing of anUnborn Infant: A Criminal Act?, 20 BUFFALO L. REV. 535,536 (1971).

Michael K. Nowak, Comment, Feticiden In Illinois:Legislative Amelioration of a Common Law Rule, 4 N. ILL.U. L. REV. 91, 100-02 (1983).

Gary V. Perko, State v. Beale and the Killing of a ViableFetus: An Exercise in Statutory Construction and thePotential for Legislative Reform, 68 N.C. L. REV. 1144(1990).

Margaret Phillips, Comment, Umbilical Cords: The NewDrug Connection, 40 BUFF. L. REV. 525 (1992).

Patricia A. Sexton, Imposing Criminal Sanctions onPregnant Drug Users: Throwing the Baby Out With theBath Water, 32 WAsHBuRN L.J. 410 (1993).

Michael A. Shekey, Comment, Criminal Liability of aProspective Mother for Prenatal Neglect of a Viable Fetus, 9WHITIER L. REV. 363 (1987).

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Barbara Shelley, Symposium, Maternal Substance Abuse:The Next Step in the Protection of Fetal Rights?, 92 DICK. L.REV. 691 (1988).

Deborah A. Wanamaker, From Mother to Child . . . ACriminal Pregnancy: Should Criminalization of thePrenatal Transfer of AIDS/HIV Be the Next Step in theBattle Against This Deadly Epidemic?, 97 DICK. L. REV. 383(1993).

Michelle D. Wilkins, Comment, Solving The Problem ofPrenatal Substance Abuse: An Analysis of Punitive andRehabilitative Approaches, 39 EMORY L.J. 1401 (1990).

11. FEDERAL LAW

A. ANNOTATIONS

Richard Schaeffer, Annotation, Fetus as Person on WhoseBehalf Action May be Brought Under 42 USCS § 1983, 64A.L.R. FED. 886 (1983).

Allan L. Schwartz, Annotation, Measure of Damages forWrongful Death of Child under Federal Tort Claims Act, 25A.L.R. FED. 179 (1975).


Junius C. McElveen, Jr., Reproductive Hazards in theWorkplace, 20 FORUM 547 (1985).

12. WORKERS' COMPENSATION

A. ANNOTATIONS

Carol Crocca, Annotation, Workers' Compensation:Coverage of Employee's Injury or Death from Exposure tothe Elements - Modern Cases, 20 A.L.R. 5TH 346 (1994).

Todd R. Smyth, Annotation, Workers' Compensation Act asPrecluding Tort Action for Injury to or Death of Employee'sUnborn Child, 55 A.L.R. 4TH 792 (1987).

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Tami L. Baldinger, Johnson Controls Poses A DifficultQuestion for Employers: Does Title VII Preempt State TortClaims for Prenatal Injuries?, 66 FLA. B.J. 40 (1992).

Jean M. Eggen, Toxic Reproductive and Genetic Hazards inthe Workplace: Challenging the Myths of the Tort andWorkers' Compensation Systems, 60 FoRDHAm L. REV. 843(1992).

George Kelly, Note, An Employer's Right to HealthProtection or a Woman's Right to Equal Employment: ACritical Look at Fetal Protection Policies, 26 NEW ENG. L.REV. 1101 (1992).

Valerie Mark, The Flip Side of Fetal Protection Policies:Compensating Children Injured Through ParentalExposure to Reproductive Hazards in the Workplace, 22GOLDEN GATE U.L. REV. 673 (1992).

Christine N. O'Brien & Margo E. Reder, Modeling AnEmployment Policy to Unify Workers' Rights With FetalProtection, 24 ARiz. ST. L.J. 1149, (1992).

Stephen S. Paskal, Symposium, Wisha's TwentiethAnniversary Liability for Prenatal Harm in the Workplace:The Need for Reform, 17 U. PUGET SOUND L. REV. 283(1994).

Cathleen M. Tierney & Carole Stern, Inheriting WorkplaceRisks: The Effect of Workers' Compensation "ExclusiveRemedy" Clauses on the Preconception Tort After JohnsonControls, 28 TORT & INS. L.J. 800, (Summer 1993).

13. VIABILITY

A. PUBLICATIONS/ARTICLES

Norman Fost, The Limited Moral Significance of 'FetalViability', 10 HASTINGS CENTER REP. 10 (1980).

Frank J. Hartye, Tort Recovery for the Unborn Child, 15 J.FAM. L. 276 (1977).

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Sheryl A. Symonds, Wrongful Death of the Fetus: ViabilityIs Not A Viable Distinction, 8 UNIV. PUG. S. L. REV. 103(1984).

Richard Willia, Negligence and the Unborn Child: A Time

for Change, 18 S.D. L. REV. 204 (1973).

14. PRECONCEPTION TORTS

A. AM. JUR.

22 AM. JUR. 2D Death § 99 (1988).

23 AM. JUR. 2D Descent and Distribution §§ 94-96 (1983).

23 AM. JUR. 2D Deeds § 30 (1983).

41 AM. JUR. 2D Husband and Wife § 300 (1968).

51 AM. JUR. 2D Life Tenants and Remaindermen §§ 6-13(1970).

76 AM. JUR. 2D Trusts § 138 (1992).

79 AM. JUR. 2D Wills § 168 (1975).

81 AM. JuR. 2D Workmen's Compensation § 205 (1992).


Peter B. Babin, Preconception Negligence: Reconciling anEmerging Tort, 67 GEo. L. J. 1239 (1979).

Donald W. Brodie, The New Biology and the Prenatal Child,9 J. FAm. L. 391 (1970).

Elizabeth F. Collins, An Overview and Analysis: PrenatalTorts, Preconception Torts, Wrongful Life, Wrongful Death,and Wrongful Birth: Time For a New Framework, 22 J.FAM. L. 677 (1984).

Frank J. Hartye, Tort Recovery for the Unborn Child, 15 J.FAM. L. 276 (1977).

Benjamin Rulf, Note, Preconception Tort as a Basis forRecovery, 60 WASH. U. L.Q. 275 (1982).

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Breckinridge, Torts - Expanding the Right of Recovery forPreconception Torts, 52 TuL. L. REV. 893 (1978).

Margaret M. Hershiser, Note, Preconception TortLiability-The Duty to Third Generations: Enright v. EliLilly & Co., 24 CREIGHTON L. REV. 1479 (1991).

Jennifer A. Midlock, Note, Prenatal Injuries Caused byNegligence Prior to Conception: An Expansion of TortLiability, 54 Cm. KENT L. Rev. 568 (1977).

Note, Preconception Injuries: Viable Extension of PrenatalInjury Law or Inconceivable Tort?, 12 VAL. U. L. REV. 143(1977).

Horace B. Robertson, Toward Rational Boundaries of TortLiability for Injury to the Unborn: Prenatal Injuries,Preconception Injuries and Wrongful Life, 1978 DuKE L. J.1401 (1978).

Horace B. Robertson, Toward Rational Boundaries of TortLiability for Injury to the Unborn, Prenatal Injuries,Preconception Injuries .and Wrongful Life, 1978 DUKE L.J.1401 (1978).

Viki E. Stoll, Preconception Tort - The Need for aLimitation, 44 Mo. L. REV. 143 (1979).

Richard Willa, Negligence and the Unborn Child: A Timefor Change, 18 S.D. L. REV. 204 (1973).

15. SURROGACY

A. PUBLICATIONS/ARTICLES

Irma S. Russell, Within The Best Interests of the Child: TheFactor of Parental Status in Custody Disputes Arising FromSurrogacy Contracts, 27 J. FAM. L. 585 (1989).

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Person or Thing - In Search of the Legal Status of a Fetus

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