Farley v. Sartin
195 W. Va. 671 (1995)
PROCEDURAL HISTORY
 Action was brought to recover for wrongful death of unborn child
 Circuit Court granted summary judgment for defendants
 Plaintiff appealed
ISSUE
Is viability determinative of whether a cause of action for wrongful death can be brought for a nonviable unborn child? (no, viability does not matter)
FACTS
 Plaintiff’s pregnant wife was killed in an automobile accident with defendant (who was driving a trator trailer owned by the defendant tgrucking company
 Plaintiff’s wife was approximately 18 weeks and a few days pregnant at the time
 The baby was neither large enough nor developed enough to survive outside the womb
RULE
 W.Va. Code 55-7-5:
In order to bring an action for wrongful death, there must be death of a person, caused by the wrongful act, neglect, or default of another.
ANALYSIS
West Virginia stands alone after this decision by liberally construing the wrongful death statute to allow a cause of action for a nonviable embryo (unable to survive out of the womb). Most jurisdictions either allow no action unless the child is able to be “excited†in the womb or allow an action for a viable unborn fetus (capable of surviving with by means possible). The problem with this decision is that it opens up more questions for when an action can be brought for destruction of an embryo. The court specifically refused to decide on conception in vitro (i.e. fertilization of an embryo outside the womb at a fertilization clinic). Also, the court limited the ruling as not to contrast with the rights of a woman to have an abortion.
HOLDING
Viability is not appropriate criterion to determine whether an unborn child is a “person†within the context of the W.Va. Code, 55-7-5. Reversed and remanded.
195 W. Va. 671 (1995)
PROCEDURAL HISTORY
 Action was brought to recover for wrongful death of unborn child
 Circuit Court granted summary judgment for defendants
 Plaintiff appealed
ISSUE
Is viability determinative of whether a cause of action for wrongful death can be brought for a nonviable unborn child? (no, viability does not matter)
FACTS
 Plaintiff’s pregnant wife was killed in an automobile accident with defendant (who was driving a trator trailer owned by the defendant tgrucking company
 Plaintiff’s wife was approximately 18 weeks and a few days pregnant at the time
 The baby was neither large enough nor developed enough to survive outside the womb
RULE
 W.Va. Code 55-7-5:
In order to bring an action for wrongful death, there must be death of a person, caused by the wrongful act, neglect, or default of another.
ANALYSIS
West Virginia stands alone after this decision by liberally construing the wrongful death statute to allow a cause of action for a nonviable embryo (unable to survive out of the womb). Most jurisdictions either allow no action unless the child is able to be “excited†in the womb or allow an action for a viable unborn fetus (capable of surviving with by means possible). The problem with this decision is that it opens up more questions for when an action can be brought for destruction of an embryo. The court specifically refused to decide on conception in vitro (i.e. fertilization of an embryo outside the womb at a fertilization clinic). Also, the court limited the ruling as not to contrast with the rights of a woman to have an abortion.
HOLDING
Viability is not appropriate criterion to determine whether an unborn child is a “person†within the context of the W.Va. Code, 55-7-5. Reversed and remanded.