In a unanimous decision last Friday, the Alabama Supreme Court expanded legal protections for the unborn child when it ruled that Alabama’s wrongful death statute applied to the unborn child at any stage of development. This means that an offender can be tried civilly for the death of an unborn child regardless of viability.
April Mack was 12 weeks pregnant with Baby Mack in September 2007, when she and her fiancé were in a car accident that later resulted in the miscarriage of their unborn child. April Mack sued the drivers for injuries she incurred and also for the wrongful death of her unborn child. A Jefferson County judge dismissed Mack’s case based on viability. The county court found that the unborn child did not enjoy the legal protection of the wrongful death statute because it could not survive outside of the womb.
The case made its way to the Alabama Supreme Court where the justices unanimously overturned the lower court decision. The Court held that the wrongful death law applies to the unborn child at any stage of development. This ruling makes the civil law consistent with the criminal fetal homicide law which applies to the unborn child from the moment of conception.
Creating new precedent, the Alabama Supreme Court also overturned two previous decisions that found wrongful death statutes only applied to unborn children after the point of viability. The court noted that at the time of the two previous decisions, Alabama’s fetal homicide laws only applied to the unborn child at the point of viability. However, these laws have since changed in order to protect the unborn child at any stage of development—thus showing a clear legislative intent to grant legal protection to the unborn child from the moment of conception.
It correlates that if the state protects the unborn child under criminal law, then it should also protect the unborn child under civil law.
The court cites previous court decisions showing the connection between Alabama’s fetal homicide law and its wrongful death law. This opinion explains that the purpose of Alabama’s wrongful death statute is to “prevent homicides.”
This decision makes Alabama the tenth state to specifically permit wrongful-death actions pre-viability. This is a huge victory not only for April Mack, but also for the legal recognition of the unborn child, because this case recognizes the personhood of the unborn child under civil law.
Mack v. Carmack, 2011 Ala. LEXIS 141 (Ala. Sept. 9, 2011).
 Id. at 39-40.
 Id. at 40-41.