An Act To Allow a Wrongful Death Cause of Action for the Death of a Viable Fetus
Maine Legislature, Session 128, LD 0327
Committee: Judiciary
Sponsors: ESPLING, VOLK, AUSTIN, GUERIN, MARTIN, STANLEY, SUTTON, TURNER
Amends: 18-A MRSA §1, 18-A MRSA §2

Legislative Document
No. 327
H.P. 241
House of Representatives, January 31, 2017
An Act To Allow a Wrongful Death Cause of Action for the Death of 
a Viable Fetus
Reference to the Committee on Judiciary suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative ESPLING of New Gloucester.
Cosponsored by Senator VOLK of Cumberland and
Representatives: AUSTIN of Gray, GUERIN of Glenburn, MARTIN of Eagle Lake, 
STANLEY of Medway, SUTTON of Warren, TURNER of Burlington.
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 be or 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 shall may have been 
caused under such circumstances as shall would 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.