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Wrongful Death: Oklahoma Supreme Court Replaces Viability Standard with “Live Birth” Standard

Published online by Cambridge University Press:  01 January 2021

Fatma Marouf
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Extract

On December 7,1999, a divided Oklahoma Supreme Court held in Nealis v. Baird that a claim may be brought under Oklahoma's wrongful death statute on behalf of a nonviable fetus born alive. The decision represents a departure from the traditional notion that “viability”—the ability of a fetus to sustain life outside the womb with or without medical assistance—is the standard for wrongful death recovery. In replacing the “viability” standard with a “live birth” standard, the majority maintained that live birth is the “unassailable point at which legal rights must be said to attach to the human person. “ By holding a nonviable fetus a legal “person” for the purpose of a wrongful death claim, the court's decision emphasizes the limited application of the United States Supreme Court's holding in Roe v. Wade that a fetus is not a person for the purposes of the Fourteenth Amendment.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 28 , Issue 1 , Spring 2000 , pp. 88 - 90
Copyright
Copyright © American Society of Law, Medicine and Ethics 2000

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References

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