Abstract

http://ssrn.com/abstract=1434088
 


 



Law of Tortious Prenatal Death Since Roe V. Wade


David Kader


Arizona State University (ASU) - Sandra Day O'Connor College of Law

1980

Missouri Law Review, Vol. 45, pp. 639-666, 1980

Abstract:     
In equity, property, crime and tort, the unborn has received and continues to receive a legal personality. However, no harmonizing theory for the legal personality of the unborn has developed. Two separate, modern legal developments, one in tort, the other in abortion law, provide an opportunity to begin the descriptive and prescriptive work on a legal theory for the unborn. The ideological history of prenatal injury law, and the more recent development of prenatal death law has consistently moved toward the affirmation of the unborn as a 'person' in the law. With the United States Supreme Court’s decision in Roe v. Wade, holding inter alia that the unborn is not a 'person' under the Fourteenth Amendment to the United States Constitution, the legal profile for the unborn found the label 'person' fitting for some purposes but not for others. This apparent incongruity has played a part in spawning a number of state court wrongful death decisions involving the unborn. Unfortunately, Roe v. Wade has been employed in an inconsistent fashion by the state courts. The purpose of this article is to analyze the post-Roe v. Wade wrongful death cases involving the unborn and offer a corrective commentary on the confusions and inconsistencies which exist. This article is intended as a contribution to the needed effort to develop the meaning of 'person' in the law, and to derive a legal personality for the unborn.

Number of Pages in PDF File: 28

Keywords: wrongful death, abortion, Roe v. Wade

Accepted Paper Series


Download This Paper

Date posted: July 14, 2009  

Suggested Citation

Kader, David, Law of Tortious Prenatal Death Since Roe V. Wade (1980). Missouri Law Review, Vol. 45, pp. 639-666, 1980. Available at SSRN: http://ssrn.com/abstract=1434088

Contact Information

David Kader (Contact Author)
Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
Feedback to SSRN


Paper statistics
Abstract Views: 447
Downloads: 39

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.281 seconds