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11/9/2011 - November 2011 SLI Educational Update - Alabama Supreme Court Rules Damages May Be Recovered for Death of Unborn Child



To:                  SLI Supporters                                  

Date:               November 2011  

From:              A. Eric Johnston

Re:                  Alabama Supreme Court Rules Damages May Be Recovered For Death of Unborn Child

 Baby Mack was at his twelfth week of development when he was killed in a car accident as a result of another driver’s negligence.  The mother sought damages for the loss of her unborn child and the trial court ruled that damages were not available since her child was not viable and therefore, under Alabama law, no recovery could be had.  Attorney John T. Stamps, III, representing Baby Mack’s mother, believed this an inequitable result and appealed the case.

Until September 9, 2011, if an unborn child was killed as a result of someone’s negligence, unless the child was viable, that is able to live outside the womb, there could be no recovery for damages.  This has always been a horrible misunderstanding by the courts of the value of human life.  Would the dead child’s life be more valuable to the mother immediately after viability than before?  Unfortunately, the abortion debate snarled the law to such an extent that courts have trouble finding their way through the thickets of judicial explanation of the legal rights of unborn children.  Finally, the Alabama Supreme Court ruled in the case of April Mack, as the Mother of Baby Mack, v. Thomas Carmack, 2011 WL3963006 (Ala.), that a parent could recover damages for the loss of an unborn child, regardless of his stage of development.

The groundwork for this was laid with The Brody Act which SLI drafted and was passed into law in 2006.  It is now codified at 13A-6-1(a)(3), 1975 Code of Alabama and provides that a person is a “human being, including an unborn child in utero at every stage of development, regardless of viability.”  The Brody Act applies to criminal laws.  However, the Alabama Supreme Court explained that the purpose of our wrongful death statute was to punish for the homicide of persons and since the homicide of a person definition was changed by The Brody Act, the rule of when a recovery for damages may be available was changed.

Believe it or not, until The Brody Act became law, Alabama’s criminal code was based on the ancient common law rule that a person must be born and alive before a crime could be committed against him.  Developing embryology in the mid-1800’s informed medical science that a separate person was being formed in the womb.  While medical science dealt with these facts, law did not. It really did not need to until Roe v.Wade was decided.  It was only then that the so called “right to abortion” threatened the lives of unborn children.  Until then, they were safe in their mothers’ wombs.  Lawmakers should have acted immediately to protect the unborn.  They did not and courts labored ponderously along not recognizing the obvious.

The fact is, “viability” was not a legal concept that was considered in any legal context prior until 1973 with the decision of Roe.  Viability was a judicially made fiction to permit abortion and had no relation whatever to the reality and the importance of the unborn child in his mother’s womb. Now retired Alabama Supreme Court Justice Maddox recognized this fallacy and wrote a dissenting opinion in a 1993 Alabama case saying that viability had no place in the discussion for the value of the life of the unborn child.  Following his lead, the Alabama Supreme Court has now recognized the incongruency of allowing a tortfeaser to escape liability simply because the child may have been one week in gestation to early for viability.

The turning factor in the Baby Mack case was The Brody Act.  When The Brody Act redefined personhood for homicide purposes, then it became a catalyst allowing the Alabama Supreme Court to revisit the issue and determine that viability has no place at all in determining the value of human life and that it should be valued at every stage of development.

The tortured life of abortion law has created many problems.  We all recognize the most significant problem is the “right to abortion” found in the U.S. Constitution by the U.S. Supreme Court in Roe and expanded by its progeny.  The Baby Mack decision, The Brody Act, and other efforts to recognize the value of unborn life does not change Roe. Much work lies ahead. 

The Brody Act was a legislative enactment.  This emphasizes the importance of Alabama’s Legislature in passing laws to recognize the unborn child as a person.  Because Roe has muddied the waters on unborn personhood jurisprudence, we must persist in our efforts to protect the unborn.  The Baby Mack case is a good example of how the persistence pays off.  We will return to the Alabama Legislature in 2012 with a number of bills that will protect and recognize the rights of the unborn. 

Baby Mack should be a lesson to all legislators and to the Governor of the importance of their roles in government.  The Alabama Supreme Court has recognized, in its own words, “logic, fairness, and justice compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.”  We are also pleased to say that every Justice on the Alabama Supreme Court agreed with the Baby Mack opinion.  Chief Justice Charles Malone, and Justices Tom Woodall, Lyn Stuart, Mike Bolin, Tom Parker, Glenn Murdock, Greg Shaw, Jim Main and Kelli Wise all concurred.  We owe them a great debt of gratitude for their wisdom and stated opinion that the unborn child in Alabama has great worth.    

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