April 3, 2009

Bill to restore wrongful death of unborn in civil suits withdrawn

By Brigid Curtis Ayer

Good people with good intentions working to create good public policy can be derailed by political wrangling.

This year’s wrongful death bill, Senate Bill 341, which would have restored Indiana’s wrongful death law for viable fetuses in civil suits, hit a political snag on March 23 and was withdrawn by the bill’s sponsor.

Co-authored in the Senate by Sen. Brent Steele (R-Bedford) and Sen. Vaneta Becker (R-Evansville) and sponsored in the House by Rep. Peggy Welch (D-Bloomington), Senate Bill 341 would have allowed civil suits to be restored to its pre-2002 form to include the wrongful death or injury of an unborn child who had reached viability.

Under the bill, viability is defined as a fetus that could survive outside the womb, which is about seven months gestational age.

The bill passed the Senate by a 47-2 vote. In the House, the bill passed the Public Policy Committee, but when

Rep. Welch, a pro-life Democrat, realized that amendments were going to be attached to the bill to make it a pro-life, political football rather than an effort to correct the immediate problem in the statute, she withdrew the bill.

A common maneuver among elected representatives at the statehouse is the practice by both political parties to offer amendments which may either kill legislation or to get lawmakers to take a recorded vote on politically controversial language, which can later be used against them in election years.

Second reading amendments were filed in the House to amend Senate Bill 341, some of which would have a child defined as an unborn fetus at any stage of pregnancy rather than at viability, which is currently in the bill.

“The purpose of the bill is to restore legislative intent of the definition of a child for the purposes of wrongful death civil suits, which was changed by a 2002 ruling by the Indiana Supreme Court in the Bolin v. Wingert decision,” Rep. Welch said. “Basically in [the] Bolin [decision], the Indiana Supreme Court said that they didn’t believe the statute was clear regarding the definition of a child for civil wrongful death cases. They ruled that the definition of a child, for the purposes of a wrongful death civil suit, must be one who had taken a breath.”

The proposed legislation addressing fetal death was prompted by an incident that occurred in Indianapolis in April 2008 when a bank teller who was pregnant with twins was shot during an attempted bank robbery. She survived the gunshot wound, but her unborn twins did not. The woman was five months pregnant.

“In the situation with the bank teller who was carrying twins that died, where the one twin took a breath, it would have been considered a child, the other didn’t, so it couldn’t be considered a child in a civil wrongful death suit,” Rep. Welch said. “We are trying to move back the point of pre-Bolin, which was a 100-year tradition and precedent of recognizing a viable fetus as a child for the purpose of being a party in a wrongful death suit.”

In 1987, the legislature, while revising and updating civil suit statutes, defined a child as an unmarried individual without dependents, and who is less than 20 years of age.

Prior to 1987, it was commonly understood, accepted and supported in case law that a child in wrongful death suits included a viable fetus. The legislature did not intend to exclude the viable fetus. However, because the legislature did not explicitly include viable fetus in the definition, the court did believe it could act where the legislature had not.

In 2002, the Indiana Supreme Court’s Bolin v. Wingert ruling interpreted the definition of a child as one that had taken a breath. This ruling came about as the result of a lawsuit filed when a car accident involving Rebecca Bolin, who was eight to 10 weeks pregnant, suffered a miscarriage.

When the Bolin couple filed suit under Indiana’s wrongful death code for damages of their unborn child, the trial court found they had no claim under the current statute.

When the Bolins appealed their case to the Indiana Supreme Court, the court looked at the definition of a child and found that “the fact that the legislature did not expressly include unborn children within the definition of a ‘child’ in the Children Wrongful Death Statute lends further credence to our conclusion that an eight-to-10-week-old fetus does not meet the statute’s definition of ‘child.’ ”

The ruling stated that the legislature clearly set upper limits for a child, but not lower limits.

According to the Bolin v. Wingert case, the court based their decision on the fact that in other sections of the Indiana Code the legislature has enacted protections for unborn children using explicit language.

For example, Indiana Code 35-42-1-6, enacted in 1979, imposes criminal liability for the knowing or intentional termination of a human pregnancy, and in Indiana

Code 35-46-5-1 the legislature made it a crime to traffic in fetal tissue.

Rep. Welch said she is hopeful she can bring the bill back again before the April 29 session adjournment deadline. The Indiana Catholic Conference has been working with Rep. Welch, and is supportive of the legislation.

(Bridget Curtis Ayer is a correspondent for The Criterion. To learn more about the Indiana Catholic Conference, log on to www.indianacc.org.)

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