Utah Supreme Court Rules Unborn Child is a Minor Child per Legislation Says Austin Personal Injury Lawyer

Law Firm Newswire


PUBLISHED BY: Schuelke Law


Austin, TX (Law Firm Newswire) February 6, 2012 – Legally, there has been a question whether or not unborn children are considered minor children for the purposes of filing a medical malpractice lawsuit.

“Despite the fact that this case happened in Utah, it may have ramifications for other jurisdictions, and it says something interesting about the definition of life as well,” pointed out Brooks Schuelke, an Austin personal injury lawyer with Perlmutter & Schuelke, L.L.P.

Recently, the Utah Supreme Court handed down a ruling that indicated parents may file a wrongful death lawsuit for the death of an unborn child under the auspices of a state statute that allows claims for the wrongful death of a minor child. (Carranza et al v. USA et al, Supreme Court of Utah, no. 20090409)

In this particular case, the mother gave birth to a stillborn baby in 2007. They chose to file a medical malpractice wrongful death lawsuit against the doctors that delivered the baby and the U.S. government, alleging medical malpractice and seeking damages for wrongful death. The government responded there was no way under Utah law that they were eligible for damages as the statute only referred to a minor child, and not an unborn child.

The question of law then became what the definition of a minor child encompasses. Thus, by 2009, the Utah federal court gave leave to the parents for certification of that question, sending it to the Utah Supreme Court. There were five justices sitting on this case, and although there was not a majority opinion, four justices responded that the term “minor child” did include an unborn child.

The core of the decision rested on the term “child” as being an all-encompassing term for a young person, baby or fetus. The term minor acted only to establish an upper limit at the age of majority, but that there was no lower limit. Additionally, it was seen to be consistent with the state’s judicial code to respect the right to life of all other persons, including all unborn persons.

“Forming part of the opinion was the observation that the statute in question covered claims for death and/or injury. Keep in mind the rule that prenatal injuries are actionable if a child survives medical negligence, and that the statute would then also cover acts that caused an unborn child to die in utero,” Schuelke indicated.

The interesting facet of this case is that there are only six states that extend liability for wrongful death claims to unborn children: West Virginia, South Dakota, Georgia, Illinois and Louisiana. Currently, there is a group, Personhood USA, pushing for ballots on this issue in Alaska, Ohio, California, Nevada, Florida and Montana. In other words, there may be more movement on this issue in other states as well.

“If you are faced with a situation like this, but do not know where you stand legally, make your first call for information to a competent Austin personal injury lawyer. Reviewing cases like this is our job, and we can give you an assessment of the situation in a down-to-earth, no nonsense manner. We are here to help when you are faced with daunting odds and the possible injury or death of a baby due to medical malpractice,” said Schuelke.

To learn more or to contact an Austin personal injury attorney or Austin injury lawyer, visit

Perlmutter & Schuelke, LLP
206 East 9th Street, Ste. 1511
Austin, TX 78701
Call (512) 476-4944

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