Fetus a Person, Court Says, in Wrongful Death Claim

PHOENIX —  The Arizona Supreme Court ruled Wednesday that a stillborn viable fetus is a person, allowing a couple to take a wrongful death claim to trial in a malpractice case.

The court’s unanimous ruling came in the case of Jack and Charlene Summerfield of Mesa, Ariz., whose daughter was stillborn in 1981.

The couple filed a malpractice suit against their doctors, including a claim for wrongful death. The case was dismissed by Maricopa County Superior Court Judge Marilyn Riddel on grounds that a fetus was not a person for purposes of the wrongful death law.

Riddel’s ruling was upheld by the Arizona Court of Appeals.

Justice Stanley G. Feldman, writing for the Supreme Court, said, however, that medical technology has advanced to the point where a viable fetus must be recognized as a person under the wrongful death statute.

“There is no logic in the premise that if a viable infant dies immediately before birth it is not a ‘person’ but that if it dies immediately after birth it is a ‘person,’ ” Feldman wrote.

Cites Test of Viability

The court also said that common law now recognizes that viability--the ability of a fetus to survive outside the mother’s womb--should determine when it is a “person” for purposes of compensation.

Joseph Richter, attorney for the Summerfields, said the case now will be set for trial.

He said the ruling would “absolutely set a precedent” and that he believes the timing was right for such a decision.

“We weren’t dealing with a 2- or 4-month-old fetus. We were dealing with almost a full-term fetus,” he said.

The court said it “seems more sensible” to permit parents of viable fetuses to seek recovery than to impose an “artificial cutoff,” which would permit recovery only if the injured child survives or is born alive and then dies.

“Such a narrow construction of ‘person’ would not only deny compensation to the survivors, but would also run contrary to an apparent legislative objective of providing protection for the fetus,” Feldman wrote.