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An Act To Allow a Wrongful Death Cause of Action for the Death of a Viable Fetus
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 18-A MRSA §1-302, sub-§(a), as amended by PL 2003, c. 618, Pt. B, §4 and affected by §20, is further amended to read:
 
(a).   To the full extent provided in sections 3-105, 5-102 and 5-402, the court has jurisdiction over all subject matter relating to (1) estates of decedents, including construction of wills and determination of heirs and successors of decedents and estates of protected persons; (2) protection of minors and incapacitated persons; and (3) trusts; and (4) estates of unborn viable fetuses in wrongful death actions pursuant to section 2-804, including determination of heirs.
Sec. 2. 18-A MRSA §2-804, sub-§(a), as enacted by PL 1979, c. 540, §1, is amended to read:
 
(a).   Whenever the death of a person shall beor an unborn viable fetus is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person or the corporation that would have been liable if death had not ensued shall be, other than the mother if the death was the death of an unborn viable fetus, is liable for damages as provided in this section, notwithstanding the death of the person or unborn viable fetus injured and although the death shallmay have been caused under such circumstances as shallwould amount to a felony. For purposes of this subsection, an unborn viable fetus is a fetus that has reached 24 or more weeks of gestation.
 
(1).  There is no cause of action under this subsection against a health care practitioner or health care provider for the wrongful death of an unborn viable fetus caused by an abortion if the abortion was permitted by law and required consent was lawfully given.
 
There is no cause of action under this subsection against a health care practitioner or health care provider for the wrongful death of an unborn viable fetus based on the alleged professional negligence of the health care practitioner or health care provider when the health care practitioner or health care provider did not know and, under the applicable standard of good medical care, had no medical reason to know of the pregnancy of the mother.
 
(2).  This subsection may not be construed to permit or require any person to compel a pregnant woman to undergo medical treatment to benefit the unborn viable fetus.
 
(3).  This subsection does not affect any criminal statute.
 
(4).  Wrongful death of an unborn viable fetus is not a medical examiner case as described in Title 22, section 3025.
 
SUMMARY
This bill provides for a cause of action for the wrongful death of an unborn viable fetus. The bill specifies that such an action must be brought in Probate Court. The bill provides that an unborn viable fetus is a fetus that has reached 24 or more weeks of gestation.
The bill specifies that a cause of action for the wrongful death of an unborn viable fetus does not exist:
1. Against the mother;
2. Against a health care practitioner or health care provider performing an abortion permitted by law and for which required consent was given; or
3. Against a health care practitioner or health care provider if the health care practitioner or health care provider did not know of the pregnancy and, under the applicable standard of care, had no medical reason to know of the pregnancy.