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Abstract

In Milton v. Cary Medical Center, a sharply divided Maine Supreme Judicial Court, sitting as the Law Court, refused to recognize a right of action for the wrongful death of a viable fetus. The court held that a viable fetus is not a person for purposes of applying Maine's wrongful death statute and that, consequently, the mother of a stillborn child could not maintain an action for the child's death. The court determined that the legislative history of the statute indicated that the Legislature did not intend the remedy to apply in the case of a child not born alive. The issue was one of first impression for the Law Court, which chose in a four-to-three decision to adopt the position of a dwindling minority of American jurisdictions. This Note examines the reasoning of the Milton court in denying relief for the wrongful death of a viable fetus and concludes that the legislative history of the wrongful death statute did not compel the court's decision. This Note agrees with the dissent that the Legislature simply had not spoken on the issue before the court and that, in the absence of any express legislative intent to the contrary, the court properly could have construed the word "person" as used in the wrongful death statute to encompass a viable fetus. Furthermore, this Note contends that recognition of a right of action for the wrongful death of a viable fetus is more logical, more equitable, and more effectual of the legislative purpose of the wrongful death statute than the rule announced by the court.

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