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Unborn Children


At Common Law At common law, one did not owe a duty to an unborn child. For example, a child born with defects that were caused while still in the womb could not sue the responsible party for damages.


Recently Over the past 40 years, some courts have modified the common law view by allowing recovery for damages caused while one was still in the womb in one of two situations:
Viable Fetus Some courts require that there be a viable fetus at the time that the injury occurred. Some courts have considered a fetus that was a few weeks old to be viable.

Born Alive
Some courts require that the child be born alive.


Wrongful Life A suit brought by a plaintiff against those people responsible for the plaintiff’s birth. Courts have generally rejected such suits on the theory that one cannot argue that he was better off not being born. These suits are most likely to be allowed for congenital defects which, if properly diagnosed during a mother’s pregnancy, would have led her to abort. Usually plaintiffs recover for medical expenses and sometimes for mental and emotional suffering.

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