The state's highest court yesterday barred relatives of a pregnant woman killed in an automobile accident from suing on behalf of her fetus, ruling that it could not legally be considered a person.
The Court of Appeals ruled that because Cheryl Scott's 8-week-old fetus was nonviable -- or not able to live outside the womb -- at the time of the accident it did not have separate legal rights. The 15-page opinion marked the first time the court addressed the rights of a nonviable, stillborn fetus.
Mrs. Scott's mother filed a $4 million wrongful death suit in November 1993 against the driver of the car in which her 33-year-old daughter was riding and against the city of Baltimore, which owned the ambulance that struck the car.
Last year, Baltimore Circuit Judge Ellen M. Heller dismissed the claims filed on behalf of the fetus. The suit was settled with $62,500 being split among Ms. Scott's three children and the five other people who were in the car at the time of the May 1993 accident, court records show.
In yesterday's ruling, the court said every state but Missouri has held that a stillborn, nonviable fetus is not entitled to be represented in wrongful death claims.
Judge Howard S. Chasanow, writing for a unanimous court, said the ruling was consistent with Roe vs. Wade, the 1973 Supreme Court ruling that said a fetus is not entitled to the same constitutionally protected rights as a person.
"Because the stillborn nonviable fetus could not and did not maintain a separate and independent existence from its mother, no separate cause of action for its death could be maintained," Judge Chasanow wrote.
The appeals court previously ruled that a suit may be brought on behalf of a viable fetus or one that is nonviable but manages to survive outside the womb. A fetus is generally recognized as reaching viability six months after conception.
"Essentially, the court is saying it's a legislative decision, not one for the court," said Robert Jay Feldman, a law clerk who worked under attorney Nelson R. Kandel in appealing Judge Heller's ruling.
Mr. Feldman said the settlement amount was relatively small because of the limited insurance coverage being carried by the car's driver and because of statutes that limit the city's liability in such accidents.
