Wrong without a Remedy - North Carolina and the Wrongful Death of a Stillborn

This comment ... presents a legal argument supporting a civil action for the wrongful death of some stillborns and suggests that a gestational age of twenty-six weeks represents an appropriate viability standard in interpreting the North Carolina wrongful death statute. It also attempts to bridge the perceptual gap between certain aspects of medical and social sciences and the law regarding the fetus. The argument in support of the twenty-six week viability standard is presented in four parts. First, this comment illustrates why the fetus now enjoys an elevated status in society.

Second, it illustrates the devastating impact of a stillbirth on the survivors. Third, it examines the "born alive" requirement and demonstrates that this requirement does not represent a well-defined line of demarcation, nor is it in the best interest of the public. Finally, it recommends that North Carolina courts interpret the wrongful death statute to include fetuses who have reached a gestational age of twenty-six weeks, because this age is: an age consistent with a medical viability standard; an age at which abortion ceases to be a maternal, medical, or legal option; an age at which maternal attachment is well-developed; and an age during which the fetus exhibits true attributes of personhood.