HomeMy WebLinkAbout0074 .
have considered the issue of allowing a cause of action fox the wrongful -
death of a stillborn, now allow a cause of action. Logic and reason
mandate a cause of action for the wrongful death of a stillborn. The
basis is founded upon logic, legal reasoning and a sense of justice.
A viable fetus is a human being capable of independent existence out-
side of the womb. A human life is, therefore, destroyed, when a viable
fetus is killed. It is wholly irrational to allow liability to depend `
on whether or not the death from the fatal injury or wrong-doing occurs
just before or just after birth and it is absurd to allow recovery for
prenatal injuries unless they are so severe as to cause death. Such a
situation favors the wrong doer who causes death over the one who merely
causes injuries and so enables the tort--feasor to foreclose his own
liability. See Annotation, 15 ALR 3rd, 992 (196?); Stern v. Miller,
2
348 So.2d 303 (Fla. Sup. Ct. 1977).
3
The Florida Legislature has recognized that in certain
situations an unborn child is a legal personality. FSA §72.09 pro-
vides for criminal penalties in the willful killing of an unborn child
by any injury to the mother of that child. In FSA §458.22 of the Florida
Statutes, it is provided that an abortion shall not be performed on
any human being in the last trimester of her pregnancy unless certain
definitive and specific requirements are met.
There is no question in this case that, assuming
Plaintiffs can prove their claims against these Defendants, a wrong
has been shown. Section 21 of Article 1 of the Florida Constitution
states that "The Courts shall open to every person for redress of any
injury, and justice shall be administered without sale, denial or
delay." Plot recognizing Plaintiffs' right and cause of action to move
forward in this case, the wrongful death action on behalf of the minor ~
daughter, or stillborn, would be denying Plaintiffs' access to the
Courts and, as a result, would be in violation of the Florida Consti-
r
tution.
It is also a well recognized principle of law under
the ("substantive") due process clause of the Fourteenth Amendment
to the United States Constitution that any law enac~ed by the
- -4-
~nnr AM P16E