Can you bring a wrongful death claim for an unborn baby?

Catastrophic Injury/Wrongful Death - July 18, 2023

Losing an unborn baby is one of the most devastating experiences a parent can go through. In certain circumstances, you may have the right to file wrongful death actions on behalf of fetuses. However, Illinois wrongful death fetus laws can be complex.

Your Chicago wrongful death lawyer will need to carefully evaluate the specific details of your case to determine whether you meet the qualifications according to the law. Here is more about how to pursue the wrongful death of a  fetus in Illinois and what to expect as you move through the claims process.

wrongful death actions on behalf of unborn baby

Illinois wrongful death laws regarding unborn babies

In traditional wrongful death cases, only specific parties have the right to file a wrongful death claim. Under Illinois law, the parents of stillborn babies or pregnant women who suffered a miscarriage or stillbirth have the right to file a wrongful death action on behalf of their baby. This is true without regard to “the state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death.”

This means as long as your unborn baby’s death was caused by the negligent or wrongful actions of another, you may have the right to file a lawsuit against the at-fault parties. We do not see wrongful death claims for unborn babies often. But when we do, it is generally because of medical malpractice during pregnancy, labor, delivery, or drunk driving.

Instances where you cannot file a wrongful death claim for your unborn baby

There are also instances in which you do not have the right to file a wrongful death claim despite losing an unborn child. According to Endresz v Friedberg, parents and pregnant people cannot file wrongful death claims against healthcare providers if the fetus passes away when healthcare providers do not know a woman is pregnant or had no medical reason to know a patient was pregnant. Wrongful death actions can also not be filed against healthcare providers due to a fetus death caused by a consensual and legal abortion.

Recoverable damages in an unborn baby wrongful death lawsuit

Our Chicago wrongful death attorneys are here to help you get through these emotionally trying times. Although no amount of money or compensation will change the trauma of your experience or ease the pain of your loss, it is often one of the only ways to ensure the liable party is held accountable.

Some of the potentially recoverable damages that may be available after losing an unborn baby include:

  • Mental health counseling expenses
  • Loss of income
  • The baby’s funeral and burial costs
  • Physical pain and suffering
  • Permanent loss of fertility
  • Mental anguish and emotional distress
  • Punitive damages, when applicable

Illinois wrongful death lawsuit deadlines

Wrongful death claims for unborn babies must be filed before the statute of limitations deadline. There are multiple statute of limitations deadlines that could apply in cases like these, including:

One year from the date of the liable party’s conviction for:

Otherwise, the statute of limitations is two years from the date of the unborn child’s death or as much as five years from the day they passed away, according to Molly’s Law, if the baby was killed due to violent crimes such as manslaughter, homicide, or murder.

Connect with a wrongful death attorney for support today

Having to cope with the loss of an unborn baby is unimaginable for most people. The trauma you are going through may be too much to bear. You can demand justice and work towards healing when you reach out to the compassionate Chicago wrongful death attorneys with Horwitz, Horwitz & Associates. Schedule your free consultation today when you fill out our quick contact form or call our office at (800) 985-1819.

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