Utah Supreme Court rules unborn children qualify as minors

SALT LAKE CITY — The state's high court has determined that an unborn child qualifies as a minor child and, therefore, wrongful death lawsuits may be filed on behalf of those who die before birth.

The decision stemmed from a case of a Utah County couple who filed a lawsuit after their child was stillborn in 2006. While the Utah Supreme Court justices did not issue a single majority opinion in the case, four of the five justices, through differing logic, came to the same conclusion.

"Although there is no majority opinion, four members of this court hold that the statute allows an action for the wrongful death of an unborn child," Chief Justice Christine Durham wrote. "The term 'minor child,' as used in the statute, includes an unborn child."

In her opinion, which was supported by Justice Jill Parrish, Durham wrote that a look at the "plain language" of the phrase "reveals that the term 'minor child,' as used in this statute, includes an unborn child. The statute does not itself define the term 'minor child,' but in general usage the term 'child' may refer to a young person, a baby, or a fetus."

She said current Utah code would allow for a wrongful death action as soon as the child is conceived.

Justice Ronald Nehring issued a dissenting opinion in the case.

Nehring said the logic of his four fellow justices is wrong "because (1) the plain meaning of 'minor child' does not include a fetus, (2) a wrongful death cause of action may only be recognized through clear legislative direction, and (3) a construction of 'minor child' that encompasses an unborn fetus creates absurd results under our laws."

He argued that the majority idea that the term "minor child" would include an unborn fetus is "quite bizarre."

"I believe that our state’s populace would find the reference to a fetus as a 'minor child' quite bizarre," he wrote. "In fact, the usage of 'minor child' to refer to a fetus is far from being general. It is unique. It is usage specific to anti-abortion political rhetoric — an issue with which we are not concerned here."

The question of whether Utah’s wrongful death statute allowed for action on behalf of an unborn child came before to the state's high court from U.S. District Court, where a couple sued a government-subsidized health clinic after their son was delivered stillborn.