Gadsden, Alabama


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Michael Roberts
Michael Roberts
Attorney • (256) 543-0400

Suit for Wrongful Death of Non-Viable Fetus Allowed

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A recent change in Alabama law means successful lawsuits can now be pursued for negligently causing the death of a previable fetus. Before this September 9 ruling, the law, as represented by the 1993 Lollar case and Gentry case, had provided that wrongful death claims could be maintained for the death of a fetus only if the fetus had reached the point of viability. In the September 9 opinion released in the case of Mack v. Carmack, the Alabama Supreme Court focused on the 2006 passage of the Brody Act in the Alabama Legislature which, for the purpose of criminal homicide prosecutions, expanded the definition of “human being” to include an unborn child in utero at any stage of development, regardless of viability.

The court reasoned that it would be incongruous for a defendant to be subject to criminal prosecution for homicide but have no similar responsibility in a civil lawsuit for the same death.