Florida subcommittee advances bill allowing parents to sue for wrongful death of an unborn child

TALLAHASSEE — The Civil Justice & Claims Subcommittee on Wednesday advanced a proposed committee substitute (PCS) for House Bill 289, which would amend Florida's wrongful-death statute to permit the parents of an unborn child to recover damages in limited circumstances.

Representative Greco, the bill sponsor, said the PCS adds parents of an unborn child to the statute's list of "survivors" who may recover and retains an exclusion for lawful medical care. "This bill allows parents in the horrible circumstance where somebody's wrongful act causes them to lose their unborn child to seek recovery," Greco said in closing remarks.

Supporters told the committee the bill would align Florida with the majority of states and provide monetary relief for parents who lose a pregnancy because of another party's wrongful act. Opponents and several lawmakers countered that the measure, as written, is overly broad and could expose medical providers, surrogates, friends and family who assist pregnant people to litigation, chilling care and assisted-reproductive services.

In committee questioning, Representative Gottlieb and others pressed the sponsor on the notion of "survivors" in the statute and whether extended family or adoptive relatives might be able to recover. Greco said the PCS is narrowly written to permit recovery only by the parents of an unborn child and reiterated that any wrongful-death claim must allege one of the traditional tort grounds'wrongful act, negligence, breach of contract or breach of warranty'and that the statute expressly excludes suits based on lawful medical care.

Several members raised hypotheticals about surrogacy, paternity determinations before birth, and whether someone who drove a pregnant person to obtain lawful care could be sued. Greco pointed to probate rules requiring certification of a personal representative and cited Florida statute 733.301'which lays out the order of priority for appointment'as a procedural safeguard, and said convicted felons are barred from serving as personal representatives under the probate code. He also referred to a 1978 Florida Supreme Court decision, Duncan v. Flynn, which he said had held that parents could not previously recover for the death of an unborn child.

Representative Gottlieb filed an amendment (barcode PCS for HB 289 A1) that would have incorporated language from criminal statute 775.0215 to provide civil immunity for persons providing medical care to a pregnant woman or her unborn child. Representative Oliver strongly opposed the amendment, arguing it would extend immunity beyond licensed providers and weaken civil remedies for negligence. The committee voted on the amendment and, after voice responses, the amendment failed (tally not specified in the transcript).

The committee heard roughly an hour of public testimony. Proponents included advocacy groups that urged expanding the bill'some asked to include extrauterine pregnancies or to remove the health-care exemption. Opponents included medical and civil-liberties groups that warned the bill could be used to target people who assist patients in accessing reproductive care and that it could prompt OBGYNs and other specialists to reduce services or leave the state. "This bill allows a lawsuit on behalf of a zygote," said Cara Gross of the ACLU of Florida, summarizing the group's concerns that the definition reaches fertilization and would increase liability exposure for providers.

After debate, the committee took a roll-call vote on the PCS. According to the clerk's call, members voting yes included Albert, Burfield, Black, Blanco, Barrero, Kendall, Lopez, Nicks, Oliver, Placencia, Stark, Weinberger and Chair Coster; Gottlieb, Joseph and Representative Rainer voted no; Anton and Daniels were excused. Chair Coster announced the PCS for HB 289 was reported favorably by a vote of 13 yeas and 3 nays.

What happens next: The PCS is now reported favorably from the subcommittee and proceeds through the House process. Sponsor Greco said the legislation is intended to provide a limited civil remedy for parents who suffer the loss of an unborn child due to another's wrongful conduct. Lawmakers who expressed concern said they will consider further refinements in full committee and floor debate.

Authorities referenced in committee testimony include Florida Statute 768.18 (wrongful death), 733.301 (order for appointment of personal representative), 733.303 (bar on convicted felons serving as personal representatives), and criminal-statute language cited from 775.0215. The sponsor also cited Duncan v. Flynn (1978) in support of the bill's narrow focus.