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The loss of an unborn child is one of the most devastating tragedies a parent can face, especially when it happens because of someone else’s negligence. Whether the incident occurred in a car accident, a medical setting, or another preventable circumstance, California law does provide avenues for grieving parents to seek justice. Understanding your legal rights during such an emotional time is essential not only for healing but also for holding the responsible parties accountable.
Under California law, certain conditions must be met before a wrongful death claim involving an unborn child can proceed. These cases are complex, often involving sensitive legal definitions, such as fetal viability, nuanced timelines for filing, and the need for strong supporting evidence. For example, in car accidents alone, over 500 pregnant women are involved in crashes each day in the U.S., putting both mothers and unborn children at risk [source].
If your loss occurred due to a traffic incident, securing key evidence—like traffic camera footage—can make a significant difference in your claim. Our Sherman Oaks car accident lawyers understand what it takes to build a strong case and are here to guide you through every step of the legal process.
At State Law Firm, we know there’s no one-size-fits-all approach to loss. We’re a boutique team of dedicated personal injury attorneys who aren’t afraid to take on challenging cases. If you’re navigating the unimaginable, this guide is here to help you understand your rights, your options, and how to move forward with strength and support.
Understanding Wrongful Death in the Context of Unborn Children
The concept of wrongful death is rooted in the idea that surviving loved ones have a right to seek compensation when a person dies due to someone else’s negligence or misconduct. However, when the loss involves an unborn child, the law becomes far more nuanced and emotionally complex.
In many states, the wrongful death of a fetus can serve as grounds for a lawsuit, regardless of whether the child was born alive. But in California, the law takes a narrower view. The California Supreme Court ruled in Justus v. Atchison that a fetus is not considered a “person” under the wrongful death statute unless there has been a live birth. In most cases, this means that you cannot file a traditional wrongful death claim if the fetus never showed signs of life outside the womb.
Still, this doesn’t mean that parents have no legal options. If the unborn child was delivered alive—even for a brief moment—and later passed away due to injuries caused by another party, a wrongful death claim may be viable. Medical records and expert testimony play a key role in establishing that the child was born alive and exhibited signs such as a heartbeat, breathing, or movement.
Pro Tip: A skilled wrongful death attorney can help you assess whether your case meets this legal threshold and identify other potential avenues for compensation.
The Legal Framework Surrounding Wrongful Death of an Unborn Child in California
California’s wrongful death statute is governed by California Code of Civil Procedure Section 377.60, which limits eligible plaintiffs and defines who qualifies as a “decedent.” The term does not include an unborn fetus unless that fetus was born alive. This viability standard has a significant impact on the ability to bring a claim.
Parents may still pursue legal claims through other routes, including:
- Negligent infliction of emotional distress
- Medical malpractice (against doctors or hospitals)
- Product liability (e.g., if a defective product harmed the fetus)
- Auto accident liability (for at-fault drivers in car crashes)
While California does not currently recognize fetal wrongful death without live birth, 34 other states have laws that do. Advocacy continues to expand these protections, but as it stands, California parents must navigate a narrower legal pathway.
Helpful Resource: If your case involves a car crash, securing traffic camera footage can be critical to proving liability. Our Sherman Oaks car accident lawyers can help you obtain and preserve this evidence.
Your Rights as a Parent After the Wrongful Death of Your Unborn Child
Even if a wrongful death claim is not available, California law allows grieving parents to pursue compensation for pain and suffering and emotional harm. These non-economic damages may include:
- Grief and trauma from the loss
- Anxiety or depression
- Shock or psychological distress
- Loss of enjoyment of life
- Loss of companionship
There is generally no cap on these damages in civil cases unrelated to medical malpractice. That means parents could recover significant compensation depending on the circumstances and the extent of emotional harm.
Pro Tip: You may also be eligible for coverage of grief counseling or therapy as part of your damages, especially if pursued as part of a broader personal injury claim.
The Process for Filing a Wrongful Death Claim in California
If your case meets the standard for a wrongful death claim—meaning the child was born alive and then passed due to injury—there are strict requirements for filing:
- Statute of Limitations: Generally, two years from the date of death, though some exceptions may apply.
- Written Notice: If a government agency is involved (e.g., a public hospital or municipality), you must file a government claim within six months.
- Required Documentation:
- Medical records proving live birth and the cause of death.
- Death certificate (if issued)
- Evidence of negligence (accident reports, witness statements, etc.)
- Expert testimony (usually from medical professionals)
Filing this type of claim often requires expert legal support due to the sensitive and technical nature of fetal viability and the cause of death.
Pursuing Compensation: Types of Damages You May Be Entitled To
If a wrongful death or personal injury claim is available, parents may seek compensation in two main categories:
Economic Damages
- Medical bills related to prenatal injury
- Funeral and burial costs (if applicable)
- Counseling expenses
- Lost income (e.g., from missed work during recovery or mourning)
Non-Economic Damages
- Grief and emotional suffering
- Loss of companionship
- Trauma-related symptoms like PTSD or depression
Even in cases where a wrongful death claim is not an option, a strong case for emotional distress and medical negligence can result in meaningful compensation. Our firm can help you build that case.
The Importance of Hiring an Experienced Attorney for Your Case
Wrongful death cases involving unborn children are among the most emotionally charged and legally complex. The nuances of fetal viability, combined with evolving legal interpretations and the need for medical evidence, make these cases difficult to pursue alone.
At State Law Firm, we’re not just here to represent you—we’re here to stand with you. As a boutique personal injury firm in Sherman Oaks, we pride ourselves on taking tough cases and helping our clients find clarity, support, and justice. Our young attorneys are committed to evolving into top-tier litigators who can take on cases that other firms shy away from.
If you’re grappling with this kind of loss, we’ll help you understand your options, identify your best path forward, and advocate with compassion and tenacity.
Empower Yourself with Knowledge and Seek Justice for Your Losses
The loss of an unborn child is heartbreaking. But when that loss stems from another person’s negligence, you deserve answers—and potentially, accountability. While California law limits wrongful death claims for unborn children, it also offers alternative avenues for recovery, from emotional distress claims to medical negligence suits.
Whether you’re ready to take legal action or just need someone to help you understand your rights, we’re here for you. Let’s work together to build a path forward—one step at a time.
