N.Y. Est. Powers & Trusts Law § 5-4.1 (1967) declares in part that the personal representative of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Before there may be a "decedent", there must, perforce, be birth, a person born alive, and, although the statute, enacted in 1847 (1847 Laws, ch. 450), is silent on the subject, it is fairly certain that the legislature did not intend to include an "unborn" fetus within the term "decedent".
Plaintiff wife, who was pregnant, was injured in automobile accident and delivered stillborn twins. Negligence actions, including wrongful death, were filed. Plaintiff husband sued for loss of anticipated care, comfort, and support during minority and majority of each infant and for medical, hospital, and funeral expenses incurred because of the children's death. Plaintiff wife sued for damages for her injuries and for loss of care, comfort, companionship, future society, aid and comfort, and services of each infant. On defendants' motion, court dismissed wrongful death suits and claims for loss of care, comfort, and companionship of the infants but gave leave to plead over.
Can a wrongful death suit be brought for causing the negligent death of an unborn child?
The Court held that a wrongful death action could not be maintained for the death of unborn children and that parents should only be able to seek damages recoverable by them in their own right.