This past October, a Connecticut woman was one of two people killed in a head-on collision. The woman was eight months pregnant, and the baby also died following the crash.

This tragic case brings up an important question: can the family of the deceased woman file a wrongful death claim for both the woman and her unborn baby following a car crash?

The test for personhood, as stated in the landmark U.S. Supreme Court case Roe v. Wade, is viability. If the fetus can survive outside the womb, then it is a person separate from its mother. Each state may interpret the federal law regarding viability according to its own public policy and legislative decisions, as long as it does not violate federal law.

In Alabama, the statute regarding wrongful death in general is Alabama Code § 6-5-410. The statute does not specifically give guidance regarding the death of an unborn child due to the negligence or reckless acts of another person.

Modern case law, however, points to the ability for the family of the deceased to recover damages following the wrongful death of an unborn child in Alabama. In 2012, the Alabama Supreme Court decided the case of Hamilton v. Scott. In this case, a woman successfully sued her doctors, who did not prevent the death of the fetus because the unborn child was not deemed viable. In an argument that directly challenges Roe v. Wade, the concept of viability is analyzed using technology as the standard by which medicine is able to maintain life outside the womb. The plaintiff’s case presented the state justices with an opportunity to articulate the opinion that, “Medical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development.”

According to Alabama’s highest court, the wrongful death of an unborn child—whether viable or not—is a legally actionable cause. For more information about pursuing a claim for the wrongful death of an unborn child, speak to a knowledgeable wrongful death attorney in Huntsville.