Transferable Rights and How They Pertain to a Lost Pregnancy

Certain legal rights are transferable. If you owe a debt to some entity, upon your death, there is a chance that the entity will have some rights to your estate in order to satisfy your debt. Another example of a transferable right is a right of survival. If the victim in any circumstance has this right, upon the victim’s death, the right would be transferable to the victim’s family. The concept is relatively easy to understand but the situation gets complicated when the potential rights belong to an unborn fetus.

Throughout the country, different states have different interpretations of when a fetus becomes a person, and this has a big impact on what rights attach to protect the fetus. In Louisiana, the legislature has decided that an unborn fetus can in fact have rights against other persons or entities. However, Louisiana Civil Code article 26, which discusses a fetus’ rights, has some important limitations:

An unborn child shall be considered as a natural person for whatever relates to its interests from the moment of conception. If the child is born dead, it shall be considered never to have existed as a person, except for actions resulting from its wrongful death.

Thus, the Louisiana legislature has codified what rights a fetus has. These rights extend to the moment of conception. However, if the fetus is born dead, all rights that attach to the fetus, except rights that find their origin in the cause of death, are extinguished.

The Louisiana Supreme Court discussed if survival rights attach to an unborn fetus, stating that fetuses can gain rights. However, for most circumstances, the rights attach only if the fetus is born alive. The Court stated that survival action attaches to someone’s life. However, under Louisiana law a fetus that is born dead, is considered to never have existed at all. Even though the fetus gained the right to a survival action, because a stillborn fetus is considered to never have existed at all, the survival action, which attaches to a life, is extinguished.

In a recent case, Cari Long v. North Oaks Medical Center, the issue of survival action came up again. Ms. Long was involved in a car accident. She was pinned as a result of the accident. After emergency services arrived, she was taken to North Oaks Medical Center. The ER doctor and nurse contacted her obstetrician because she was pregnant. At the hospital, the heartrate of the baby was recorded at 120 beats per minute. After being taken out of ER, the doctor found that the fetus did not have a heart rate. Subsequently, the fetus was delivered as a stillborn. Ms. Long filed suit and as one of her causes of action, she claimed a survival action on behalf of the baby. All defendants filed exception claiming that there was no survival cause of action on behalf of the baby that was transferred to the parents. Based on Louisiana Civil Code article 26 and the Supreme Court ruling discussed above, there was no basis for the survival action. Under the current law there is no recourse in this type of circumstance. Only by legislative action can a survival action attach for a stillborn fetus.

While this matter is undoubtedly unfortunate and all parties involve wish that things did not go the way they did. However, the case also illustrates how complex the law can be and the ever-changing nature of some claims. Codified law can be extremely important and having an attorney that understands rights as provided by the state is significant in any matter.

If you feel that you have been injured by your doctor or medical practitioner please call the Berniard Law Firm to speak to an attorney who can help.