Court case takes up issue of when fetuses become people

HARTFORD, Conn. -- A wrongful death lawsuit headed to trial in Connecticut takes up the issue of when a fetus can be considered a person for legal purposes, rekindling a debate normally heard in discussions about abortion.

Stamford doctor Corinne de Cholnoky, who specializes in obstetrics and gynecology, is being sued for allegedly causing the death of a fetus in 2011. Jury selection in Bridgeport Superior Court was scheduled to begin Thursday.

The parents, Melanie and Floyd Foster, filed the wrongful death and malpractice lawsuit in April 2013, alleging the doctor caused the death by rupturing Melanie Foster's fetal membrane while trying to remove an intrauterine birth control device. The fetus was born alive 22 weeks into the pregnancy, but died less than two hours later. The birth and death came 10 days after the IUD procedure.

The Fosters say de Cholnoky also was negligent by not making sure Melanie Foster wasn't pregnant before trying to remove the device.

The Fosters could not be reached for comment. A phone listing for them couldn't be found. Their lawyer, David Slossberg, declined to comment.

The doctor's lawyer, James Rosenblum, tried to get the case thrown out on the argument that wrongful death lawsuits aren't allowed in cases involving fetuses that weren't viable -- meaning they weren't developed enough to survive outside the womb. He also denied the doctor was negligent.

Rosenblum, who declined to comment, cited in court documents the 1973 U.S. Supreme Court decision in Roe versus Wade, which legalized abortion until a fetus is considered viable, usually at 22 to 24 weeks.

State Superior Court Judge Michael Kamp rejected Rosenblum's arguments in August, allowing the case to head to trial. Rosenblum has notified the court that he intends to appeal Kamp's decision.

De Cholnoky didn't return a message seeking comment. In another lawsuit against her, a state jury in Stamford in 2008 found that she waited too long to perform a cesarean section and awarded $38.5 million to the parents of a boy born with cerebral palsy -- one of the largest medical malpractice awards in the state.

Kamp said in his ruling that there is no specific Connecticut case law on whether a wrongful death lawsuit can be filed in a case involving an unviable fetus that was born alive while still unviable. He said courts in other states have come down on both sides of the issue.

Kamp noted that medical experts hired by both the Fosters and de Cholnoky indicated the fetus was born alive.

"Where the doctors refer to the birth of a baby, its life and eventual death, one would conclude that the baby was a person, and that person died," the judge wrote.

Kamp said the state Supreme Court in 2010, in an appeal by former death row inmate Robert Courchesne, indicated that the so-called "born alive rule" is the basic standard in both criminal homicide and civil wrongful death cases. The Supreme Court said achieving personhood depends on whether an infant is born alive, Kamp said.