Tom Smart, Deseret News
Noelle Christensen does a fetal ultrasound.

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.

According to the complaint filed in 2007, the couple's deceased son was delivered on April 20, 2006. Amelia Sanchez, the child's mother, was 39 years old at the time and had concerns about the baby's health on April 14, the day before her official due date.

Sanchez suffered preeclampsia in her previous two pregnancies and because of her age, the pregnancy was classified as "high risk." One ultrasound also indicated that the baby might have a condition known as "double bubble," which can cause Down syndrome, the lawsuit states.

When she felt the baby's heartbeat was growing faint at an April 14 ultrasound, Sanchez told her doctor that she believed it was time that she was induced for labor as her body was responding similar to the way it had just before induction in her previous two pregnancies and because it was only one day before her due date.

"(The doctor) negligently told plaintiff Sanchez that if it were actually time for her to have the baby that she would hurt much more than she did at that time," the lawsuit states.

The doctor assured Sanchez that the baby "was very strong and that she shoud not worry," allegedly negligently ignoring Sanchez's request that she be induced and other signs of distress. Another appointment was set for 10 days later, but Sanchez went in April 19 because she was experiencing "strong, erratic contractions."

An ultrasound found that the baby was deceased. The couple filed a lawsuit in federal court soon after, but it was halted to allow for the Utah Supreme Court to respond to the question of whether such a claim could be heard.

After the high court issued its ruling, federal prosecutors filed a notice asking that the case be re-opened and set for a scheduling conference. The U.S. Attorney's Office is representing Mountainlands Health Clinic, U.S. Department of Health and Human Services and various employees.

Brett Boulton, who represented Sanchez, her husband Miguel Carranza and their deceased son, Jesua, said he and his clients were happy with the ruling.

"We feel like it reflects the values of the state," he said, noting that a number of other states have already come to similar conclusions about unborn children. "It's about time for Utah."

Boulton said the court "got it right" and that the ruling will allow for some reparation for families who lose unborn children due to negligence. He gave the example of a drunk driver who kills a pregnant woman and her unborn child and said criminal law would allow for two charges related to the deaths whereas civil law wouldn't.

"(My clients) said: 'No matter what happens with our case, we feel happy we helped change the law to be more fair,'" Boulton said.

He added it would, most likely, be some time before the federal case is resolved.

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