Dena M. Marks


“Death is well understood; it’s life that isn’t.” We recognize death, but state by state, courts struggle to understand life when called on to determine whether their states’ wrongful death acts apply after the death of an embryo or fetus. These struggles arise because, for the most part, state legislatures have failed to clarify whether a cause of action may be maintained under their wrongful death acts for the death of an embryo or fetus. This failure has lead to inconsistent and unfair results, often allowing the tortfeasor to benefit from causing the greater harm of death, when the tortfeasor would have been liable if only injury had resulted.

In Part II of this article, the history and purpose of wrongful death acts are examined. Part III examines, state by state, the inconsistent results caused by legislative failure to act. Part IV focuses on the inconsistent results within one jurisdiction, Michigan, and examines that state’s legislative attempt to provide the guidance called for in the article. Part V suggests a redrafted version of the Michigan statute, to clearly provide the guidance needed by the court. Finally, Part VI challenges state legislatures to respond to the problem by passing legislation that clarifies and directs the courts how to understand life, as it applies to embryonic or fetal death.