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Horn v. Hendrickson3/29/2005
te and distinct entity. As already noted, our legislature has defined the term "viability" to mean "the ability of a fetus to live outside the mother's womb." I.C. § 16-18-2-365. A viable fetus is a fetus that can live independently from its mother. Thus, our legislature has made it an act of murder for a person to knowingly or intentionally kill a fetus that has attained viability. See Ind. Code § 35-42-1-1(4).
Advances in obstetrics and neonatology have compelled the courts in all jurisdictions to abandon the early common law notion established 120 years ago in Dietrich v. Inhabitants of North Hampton, 138 Mass. 14 (1884) (per Holmes, J.), that a fetus and its mother are a single entity. See Atkinson v. United States, 825 F.2d 202, 207 (9th Cir. 1987) (Noonan, J., concurring). Thus, we respectfully disagree with Bolin that a viable fetus is not an individual and that the term "individual" as used in the child wrongful death statute applies only to children born alive.
This case is not about a zygote or an embryo or when life begins. This case is not about any of the controversial issues associated with the United States Supreme Court's opinion in Roe v. Wade, 410 U.S. 113, 158 (1973), which held that the word "person," as used in the Fourteenth Amendment, does not include the unborn. The question before us here does not concern the rights of the unborn; rather, this case is about the rights of parents. The issue here is not whether a viable fetus is a "person" but whether it is an "individual" under the statute. We believe that it is.
In Bolin, 764 N.E.2d at 201, our supreme court noted that " f a statute is susceptible to multiple interpretations . . . we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent." The court also stated that our courts "presume the legislature intended logical application of the language used in the statute so as to avoid unjust or absurd results." Id. at 204. Under Bolin's interpretation of the statute, a person whose wrongful act results in the death of a viable fetus owes no civil duty to the parents and is not a tortfeasor, even if that same person is convicted of feticide based on the same facts. That outcome is not only incongruous, but it is also an anomaly in Indiana law. We do not believe the legislature intended such an unjust result.
In 1884, in an early landmark case, the Supreme Judicial Court of Massachusetts rejected a wrongful death claim where the mother fell, the fall caused a miscarriage, and the child died shortly after his premature birth. Dietrich, 138 Mass. at 14-15. The mother had a verdict for her damages. The issue was whether an action could be maintained for the wrongful death of her child. The court observed that "no case, as far as we know, has ever decided that, if the infant survived, it could maintain an action for injuries received by it" and that "a pretty large field of litigation has been left unexplored until the present moment." Id. at 15-16. The court held that an action could not be maintained for the death of the child, who was not a person under the Massachusetts statute, and reasoned that "as the unborn child was a part of the mother at the time of the injury , any damage to it which was not too remote to be recovered for at all was recoverable by her . . . ." Id. at 17 (emphasis added). Likewise, in Bolin, our supreme court concluded that a viable fetus is not an individual under the child wrongful death statute, but that negligently injured expectant mothers are not without recourse, and the mother "may claim damages to compensate her for her miscarriage." 764 N.E.2d at 207-08.
The holding in Bolin that parents in Indiana cannot re
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