Wrongful Death: Oklahoma Supreme Court Replaces Viability Standard with "Live Birth" Standard

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On December 7, 1999, a divided Oklahoma Supreme Court held in Nealis v. Baird that a claim may be brought under Oklahoma's wrongful death statute on behalf of a nonviable fetus born alive. The decision represents a departure from the traditional notion that "viability"-the ability of a fetus to sustain life outside the womb with or without medical assistance-is the standard for wrongful death recovery. In replacing the "viability" standard with a "live birth" standard, the majority maintained that live birth is the "unassailable point at which legal rights must be said to attach to the human person." By holding a nonviable fetus a legal "person" for the purpose of a wrongful death claim, the court's decision emphasizes the limited application of the United States Supreme Court's holding in Roe v. Wade that a fetus is not a person for the purposes of the Fourteenth Amendment.

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28 J. L. Med. & Ethics 88 (2000).

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