The law provides family members with plenty of recourse for obtaining compensation for damages related to the negligent or intentional death of infants and kids, but what happens when the child is an unborn baby? Depending on the circumstances, it may be possible to sue a liable party for causing the death of a fetus. Here are three things that are required to win a wrongful death lawsuit involving an unborn child.

The Laws in Your State Must Allow This Type of Case

Not all states allow parents to bring wrongful death actions against other parties for the death of unborn children. Currently, only 40 states have laws that support this type of lawsuit. However, even some of those states such as Indiana and the District of Columbia only allow parents to sue if the unborn children were able to survive outside of the womb at the time of their deaths.

For instance, the court may allow a case to proceed if the pregnancy was 25 weeks along, because the survival rate of fetuses at that stage is 50 to 80 percent, thus considered medically viable. However, a parent could not sue for a fetus that is only 8 weeks old because it is physically impossible for an unborn child that age to survive without the mother.

Other states, however, will let a wrongful death case be brought before the courts regardless of whether the fetus was viable or not. About 10 states, such as New Jersey, don't allow wrongful deaths for unborn children at all. You'll need to research the laws in your state on your own or with the assistance of a personal injury attorney to determine if they allow wrongful death lawsuits for unborn children and what the age cutoff is.

Must Prove Liability

Another important thing you must show in your case is that the defendant is liable for the child's death. Typically, this involves proving the person had a duty to the mother, the child, or both and that the person breached that duty in some way. For instance, an obstetrician has a duty to provide his or her patients with adequate medical care. If the doctor behaves in a negligent or reckless manner that fatally harms the unborn child, then the doctor would be liable for the baby's death.

Establishing liability is often the most challenging part of a case, especially in medical malpractice lawsuits that depend on proving the level of care provided by a medical professional did not meet industry's standards. In these cases, the court typically looks at whether a reasonable and careful healthcare provider working under the same conditions would take the same actions as the defendant. If the answer is yes, then the court will decide in favor of the defendant.

Even in auto accident cases where it should be easy to prove the person caused the accident that lead to the death of the mother and/or child, there may be unusual circumstances that end up absolving the defendant of liability. For instance, a person swerves to avoid hitting a child that darts into the street and ends up running into a pregnant woman. The person may not be held liable for the injury to the unborn child due to the sudden emergency doctrine that basically states the individual is not liable when he or she is reacting to a sudden and unexpected situation as long as the person behaved in a reasonable manner.

It's critical to anticipate the types of defense to liability the defendant may use and develop an effective strategy to counter them.

Must Connect the Defendant's Actions to the Death of the Child

Lastly, you have to show the child died as a result of the defendant's actions. Although they are often closely connected, liability doesn't automatically equal causation. There are times when a person may be liable for creating a situation where a person was injured, but some of the injuries the person sustains weren't caused by the incident.

For instance, a drunk driver gets into an accident with a pregnant woman who is injured as a result. However, she has a miscarriage shortly after for reasons that have little to do with the auto accident. Even though the drunk driver is liable for the accident, he would not be held responsible for the death of the unborn child, because it died for other unconnected reasons.

Winning a wrongful death lawsuit involves piecing together a lot of complex parts. Work with a personal injury attorney, such as those at Tarkowsky & Piper Co. LPA​, to develop a viable case that can help you obtain the outcome you want.