Torts–Wrongful Death–Unborn Child–The Estate of an Unborn Child Has a Cause of Action for Wrongful Death–O’Neill v. Morse

The attitude of the law toward the unborn child has differed according to the area involved and its underlying concepts and policy. It has been settled en ventre sa mere be to his benefit. Legal recognition was accorded “for the purpose of providing for and protecting the child, in the hope and expectation that it will be born alive and be capable of enjoying those rights which are thus preserved for it in anticipation.” In this context, the live-birth requirement is not surprising. The injustice of depriving a posthumous child of an inheritance is apparent only if the child is alive and disinherited. Property law had early developed the idea of inchoate rights vesting upon some future date, and the property rights of the unborn child, though not precisely identical to any kind of future interest, are susceptible of the same analysis. Future interests themselves may be created for the benefit of persons not yet conceived, as well as those en ventre sa mere. But those rights could not be passed by a stillborn child, on the logic that since he had not yet actually lived, he could not die. After some vacillation, it was also settled that such inchoate rights might arise at any time during the period of gestation. There is some indication, however, that to take property, the child must have been born alive and viable; a child born so prematurely that it was obvious he would soon die was treated as if he had been born dead.