In a recent case before the Kentucky Court of Appeals, the court held that a family could not recover damages for the loss of their grandchild, who was still in utero at the time of its death. Both mother and child were killed in a 2008 car accident, and the grandfather had brought a wrongful death suit for the loss of his daughter and her unborn child.

The insurance companies involved in the car accident settled with the daughter's estate for damages related to her death. However, they refused to pay damages for the death of the 14-week-old fetus, and the Court of Appeals held that current Kentucky law does not require damages for the death of an early-term fetus. Now the claim is on appeal to the Kentucky Supreme Court.

Harsh as it may seem, wrongful death plaintiffs have so far not been able to collect damages for non-viable fetuses because Kentucky's wrongful death statute applies only to the death of a "person," and a non-viable fetus is not currently considered legally a person. The Kentucky Court of Appeals ruled unanimously against the grandfather.

A similar ruling last year held that damages were not available for the death of a 24-week-old fetus who had been delivered prematurely, because the fetus was not viable at 24 weeks. However, the definition of viability is murky at best, with no hard and fast legal rules about how old a fetus would have to be before it would be considered a "person" under Kentucky law.

The Kentucky Supreme Court will now be asked to make the final determination of whether the 14-week-old fetus in this case should be considered a person under current Kentucky law.

Source: Insurance Journal, "Kentucky Supreme Court Asked to Review Damages for Fetus Death," Aug. 24, 2011