Virginia Bill Would Create Wrongful Death Statute for Unborn

State   |   Steven Ertelt   |   Jan 4, 2011   |   2:44PM   |   Richmond, VA

Fresh from a victory in the last legislative session with its Baby Bill, the pro-life Family Foundation is moving ahead with legislation that would create a wrongful death statute for unborn children.

The Baby Bill closed a loophole in Virginia’s law that previously allowing for killing a child moments after “death” and the group says it “hopes to take the protection of life one step further this year.”

Delegate Bob Marshall, a Republican from Manassas, and Senator Jill Holtzman Vogel, a Wichester Republican, are behind HB 1440 and a yet-to-be-numbered Senate bill that would provide protection for the unborn in cases where they lose their life due to negligence of another. 

“While Virginia’s Code does include a fetal homicide law, the same unborn life, taken without intention or premeditation elicits no penalty,” Victoria Cobb, President of the Family Foundation, says. “Improving our law to provide for a civil penalty in the cases of fetal manslaughter is essential.  An unborn life is not only of value when it is wanted by the mother or when its life is intentionally taken by another.”

Virginia’s current wrongful death law operates in accordance with the “born alive rule,” Cobb explains.

“The born alive rule dates back to a 1940s federal court decision declaring that a child could recover damages for injury caused in utero once they were born,” she said. “By extension, if a baby is born alive (though sometimes barely and only through artificial means) and then dies, a parent can then pursue a wrongful death cause of action for the injury in utero.”

“Approximately 40 states have gone beyond the born alive rule and now allow for pre-birth wrongful death suits for injury caused to a fetus while in utero,” Cobb continues.

“The Wrongful Death bill supported by The Family Foundation would bring Virginia in line with current law in the vast majority of states.  This bill defines life as beginning at conception and therefore has the practical effect of expanding the state’s wrongful death statue to encompass all unborn children,” she concludes.