Viability Is No Longer a Defense to A Wrongful Death Claim In Kansas

The Kansas legislature has recently enacted a number of widely publicized and highly controversial abortion laws.  This post does not intend to get into the appropriateness of such laws or whether the laws will be able to withstand what are likely to be a number of Constitutional challenges.  Instead, there is a small part of the new laws that directly impacts a certain type of personal injury lawsuit that we would like to shed a little light on.  Specially, how the recent abortion legislation has expanded the application of the wrongful death statute to allow wrongful death claims to be brought by the decedents of a nonviable fetus.

The issue of whether an unborn, nonviable fetus is a "person" within the meaning of the Kansas wrongful death statute (K.S.A. 60-1901, et seq.) has been previously addressed.  In 1990, the Kansas Supreme Court answered this question in Humes v. Clinton where it found that “an unborn, nonviable fetus is not a ‘person’ within the definition of the wrongful death act” and therefore the parents of a negligently injured nonviable fetus could not maintain a wrongful death action for their unborn child.  246 Kan. 590, 596 (1990).   The Court reasoned that

viability is not an illogical condition precedent when a negligently injured fetus is stillborn. A nonviable fetus is not capable of living outside its mother's womb; it cannot maintain a separate and distinct existence. Thus, a nonviable fetus which dies before birth has never become an independent living person. Toth v. Goree, 65 Mich. App. at 300, (citing O'Neill v.Morse, 385 Mich. 130, 188 N.W.2d 785[1971]). In Hale v. Manion, 189 Kan. 143, this court ruled that an unborn, viable fetus was a "person" within the meaning of the wrongful death statute because it was capable of an independent existence and regarded as a separate entity. 189 Kan. at 145.

Thus, according to the Court in Humes, “viability [is] an appropriate condition precedent to liability for wrongful death under K.S.A. 60-1901.”  Id.

This past year the Kansas legislature passed into law Senate Bill No. 142 and House Bill No. 2253. While both make a number of changes to the types of claims that can be brought related to to abortion and would suggest that Humes should be overturned—e.g., SB 142 bans “wrongful life” claims in certain situations and HB 2253 defines life as beginning at fertilization—it is SB 142 that directly addressed the previously holding in Humes and altered the application of the wrongful death statute.  SB 142 specifically amends the wrongful death statute as follows:

(b)       As used in the article 19 of chapter 60 of the Kansas Statues Annotated, and amendments thereto, the term “person” includes an unborn child.

(c)       As used in this section, the term “unborn child” means a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth

As such, the death of a nonviable fetus is now considered "the death of a person" under K.S.A. 60-1901 and the heirs of the nonviable fetus may now bring a wrongful death action in Kansas.    

-Tom and Ryan