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Bailey v. Khoury1/20/2005
t time, the child has no distinct life; as the Romans said, it is merely pars viscerum matris. But, by virtue of a legal fiction, an unborn child is considered to possess personality, as if it had already been born, when this is to its advantage: nasciturus pro nato habetur, quoties de commodis ejus agitur. This idea is expressed in Article 29 of the Louisiana Civil Code of 1870, which declares that "Children in the mother's womb are considered, in whatever relates to themselves, as if they were already born; thus, the inheritances which devolve to them before their birth, and which may belong to them, are kept for them, and curators are assigned to take care of their estates for their benefit."
The anticipated personality of an unborn child produces various civil effects. In addition to the right of inheritance and the appointment of a curator, mentioned in Article 29 of the Civil Code, a posthumous child may have a cause of action under the workmen's compensation law or under the law of delictual obligations for the wrongful death of its father. Moreover, an unborn child may have a right to recover damages for prenatal injuries, namely personal injuries suffered en ventre de sa mere. It should be kept in mind, however, that the personality of the unborn child is recognized only for the preservation of its interests. Thus, while an illegitimate child may be recognized before its birth, an action for disavowal of paternity must be brought after the child is born. (Emphasis added.)
We realize that the comments of the Institute Reporter do not carry the weight of law, and that the Yiannopoulous article quoted by the Institute Reporter discussed Louisiana Persons law as it existed prior to the 1987 amendments to La. Civ. Code art. 26. We nevertheless find them persuasive evidence of the intention of the Legislature when it adopted the current version of La. Civ. Code art. 26 in 1987, especially in light of the fact that the Official Legislative Comments to the 1987 amendment specifically state that the provision "does not change the law," as noted by this court in Wartelle v. Women's and Children's Hospital, 97-0744, p. 9 (La. 12/2/97), 704 So. 2d 778, 783.
In Wartelle, a case that involved a different legal issue than is here involved, we noted that La. Civ. Code art. 26 applies only to "matters that advance the interests of the fetus, consistent with Professor Yiannopoulos's comments. Therein we said that La. Civ. Code art. 26 "accords to an unborn fetus provisional legal personality for its own interests conditioned on its subsequent live, birth, such that it can acquire a cause of action and inherit while en ventre sa mere," but that the article "does not confer actual legal personality; it provides that the fetus shall only be 'considered' as a natural child and it limits the fictional personality of the fetus to matters that advance the interests of the fetus." Id. at 4, 704 So. 2d at 781 (italics in original; boldface emphasis added).
Ultimately then, Louisiana law belies defendants' argument that Louisiana law contains no support for Ms. Bailey's argument that an unborn child should be treated differently from other natural persons for purposes of prescription. In fact, Louisiana law specifically provides that the "legal fiction" of natural personality that attaches to an unborn child from the moment of conception pursuant to La. Civ. Code art. 26 applies only when such application is for the benefit of the child or for the preservation of its interests, as in the Malek case in which the court allowed the mother to assert the filiation and support action prior to the child's birth.
It follows logically that the "legal fiction" of the unborn child's nat
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