Iowa high court admits preborn children have rights

On Friday, the Iowa Supreme Court ruled a child not yet born at the time of a parent’s death can still be awarded damages for wrongful loss of parental companionship. Despite the clear implications about when life begins, the court tried to distance its decision from the abortion debate.

On May 24, 2010, Paul Gray, a founding member and bassist for the Grammy Award–winning heavy metal band Slipknot, was found dead in a Johnston, Iowa, hotel room. The medical examiner ruled the 38-year-old’s death an accidental overdose of morphine and the painkiller Fentanyl. His wife, Brenna, was “3 to 4 months pregnant,” a representative from her attorney’s office, Stoltze & Stoltze, told me.

In February 2014, Brenna Gray sued her husband’s physician, Daniel Baldi, United Anesthesia & Pain Control, and other medical providers, claiming they failed to monitor her husband’s drug addiction treatment properly. A jury later cleared Baldi of all criminal charges in connection with Paul Gray’s death. But Brenna Gray claimed a spousal consortium injury and, on behalf of her daughter (referred to in court documents as O.D.G.) a parental consortium injury, which includes the loss of parental “support, companionship, aid, affection, comfort, and guidance.”

In July 2014, a judge dismissed Brenna Gray’s spousal consortium claim because she filed the lawsuit more than two years after her husband’s death, exceeding Iowa’s statute of limitations for such a claim.

But Iowa allows lawsuits on behalf of a minor who was under the age of 8 when the alleged wrongful death occurred, if the suit is brought before the child reaches the age of 10.

Baldi’s attorneys asserted the law doesn’t apply to a child not yet born.

“The ‘fetus’ is not a ‘minor’ … because the word ‘minor’ includes only living persons, and an unborn child is not yet living,” the defense claimed. Baldi’s lawyers also argued “‘under the age of 8’ does not include ‘negative age.’”

The plaintiff’s attorneys disagreed. Borrowing from a pro-life argument, they also pointed out a ruling against O.D.G. “would permit a child who was just seconds old at the time of [her] parent’s death to sue, yet prevent the same suit from a child who was born a second after [her] parent passed away.”

The Iowa Supreme Court, clearing the way for O.D.G.’s lawsuit to go forward, ruled the law does apply to preborn children.

“[A] child conceived but not yet born at the time of [her] parent’s death can bring a parental consortium claim” after she is born, the court wrote in its decision. “Whatever deprivation of consortium O.D.G. is currently experiencing is no less real just because she did not experience it in utero.”

But in strong language, the court attempted to sidestep the implication of its decision on the legality of abortion, explaining it ruled for the plaintiff simply because the petition, filed when O.D.G. was 3 years old, was “clearly ‘brought on behalf of a minor.’”

“[T]he semantic argument whether an unborn child is a ‘person in being’ is beside the point. … Any reader who scours this opinion’s interstices for implied sentiments about any context beyond the narrow parental consortium question presented undertakes a fool’s errand.”

Clarke Forsythe, acting president and senior counsel for Americans United for Life, said he wasn’t surprised by the court’s decision.

“The case is not huge and not unprecedented,” Forsythe told me. “But it does confirm that the unborn child is a human being in the womb.”