Wrongful death actions allow family members to recover losses in the event a person dies as a result of negligence or criminal wrongdoing by a third party. Beginning in about the 1880s, courts in the U.S. began interpreting statutes to exclude the recovery of damages for the death of unborn children. That slowly began to change in the mid-1940s, with some courts reasoning that recovery was allowed if the injury occurred before birth, but the child was born alive and later died.
By 2011, there were 36 states that recognized, as a result of either case law or actual statute, a cause of action in a civil lawsuit for the death of an unborn child. Even so, not many courts have specifically broached the issue of whether a cause of action exists if an unborn child dies before his or her viability outside the womb. Courts in North Carolina and South Carolina (see Johnson v. Ruark Obstetrics, a 1990 North Carolina Supreme Court case, and Crosby v. Glasscock Trucking Co., a 2000 case decided by the South Carolina Supreme Court), along with New York, have specifically decided not to allow recovery for the wrongful death of non-viable fetuses. There are other courts, however, that have specifically recognized the right of plaintiffs to file wrongful death lawsuits for nonviable fetuses. Among those are Alabama, Utah, South Dakota, Oklahoma, and Missouri.
Recently, in Alabama, the state supreme court underscored its position on this point in the recent case of Stinnett v. Kennedy, even as it pertained to the alleged medical malpractice of a doctor.