Tomorrow, HB 1440, patroned by Delegate Bob Marshall (R-13, Manassas), which would provide protection (civil recourse) for the unborn in cases where they lose their life due to the negligence of another, will be heard in the House Courts of Justice Committee (click here for links to members’ contact information). Please contact committee members now and urge them to report HB 1440.
While Virginia’s code does include a fetal homicide law, the same unborn life, taken without intention or premeditation elicits no civil penalty. Improving our civil law to recognize fetal manslaughter is essential because 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.” 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. 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. The Wrongful Death bill 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.