HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 651 Civil Liability for the Wrongful Death of an Unborn Child
SPONSOR(S): Judiciary Committee, Civil Justice Subcommittee, Persons-Mulicka
TIED BILLS: IDEN./SIM. BILLS: SB 476
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 12 Y, 5 N, As CS Leshko Jones
2) Judiciary Committee 15 Y, 7 N, As CS Leshko Kramer
SUMMARY ANALYSIS
Florida's Wrongful Death Act (Act) provides that when a person’s death is caused by a wrongful act,
negligence, default, or breach of contract or warranty, and the deceased person would have been entitled to
recover damages if he or she had survived, the person responsible for the death is liable for damages
notwithstanding the injured person’s death. In a wrongful death action, the Act limits the types of damages
recoverable by certain parties as follows:
 The deceased’s estate may recover for:
o Lost wages, benefits, and other earnings;
o Medical and funeral expenses that were paid by the estate; and
o The value the estate could reasonably have been expected to acquire if the deceased had lived.
 Specified family members may recover for:
o The value of lost support and services from the date of the decedent’s injury to his or her death;
o Future loss of support and services from the date of death, reduced to present value;
o Loss of companionship and guidance;
o Mental and emotional pain and suffering, in specified cases; and
o Compensation for medical and funeral expenses the family member has paid for the deceased.
However, the Florida Supreme Court has held that an unborn child is not legally a “person” for purpos es of the
Act—meaning that a person whose action causes the death of an unborn child is not civilly liable to the
surviving parents for damages under the Act.
CS/CS/HB 651 expands Florida’s Wrongful Death Act to allow the parents of an unborn child to recover
monetary damages from a person who is responsible for the unborn child’s death. However, the bill clarifies
that such wrongful death action may not be brought against the mother for the wrongful death of her own
unborn child.
The bill may have an indeterminate fiscal impact as it expands Florida’s Wrongful Death Act, which may allow
for parents of an unborn child to recover increased monetary damages from state and local government
entities and private individuals party to the suit.
The bill provides an effective date of July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida’s Wrongful Death Act
A "wrongful death" action arises when a person dies from injuries sustained as a result of an act or
omission by the defendant.1 At common law, there was no cause of action for wrongful death. 2 Courts
reasoned that a deceased person could not pursue legal action, so the claim died with the decedent.3
In turn, states began to enact wrongful death statutes to create a civil right to recovery when the would-
be plaintiff dies, shifting the resulting losses from the decedent’s survivors to the wrongdoer.4
Under Florida's Wrongful Death Act (Act),5 when a person’s death is caused by a wrongful act,
negligence, default, or breach of contract or warranty of any person, and the event would have entitled
the deceased to recover damages if he or she had survived, the person who would have been liable if
death had not occurred is still liable for specified damages, notwithstanding the injured person’s death.6
A wrongful death suit must be brought by the decedent’s personal representative, who may recover
damages for the benefit of certain specified individuals. 7 The Act specifies the parties who may recover
for a wrongful death, who are generally:
 The deceased’s estate;
 The surviving spouse of the deceased;
 Children of the deceased, who are under 25 years of age;
 Children of the deceased, who are 25 years of age or older, if there is no surviving spouse;
 Parents of a deceased child who was under 25 years of age; and
 Parents of a deceased child who was 25 years of age or older who had no surviving spouse or
children.8
However, these parties may only recover damages that are specified under the Act. The deceased’s
estate may recover for:
 Lost wages, benefits, and other earnings including the potential for future earnings;
 Medical and funeral expenses that were paid by the estate; and
 The value the estate could reasonably have acquired had the deceased lived.9
A “survivor” under the Act—which means the decedent’s spouse, child, and parents, as well as other
blood relatives,10 may recover for:
 The value of lost support and services from the date of the deceased’s injury to his or her
death;11 and
 Loss of future support and services from the date of death, reduced to present value. 12
Further, specified family members may recover for:
1
See Pezzi v. Brown, 697 So. 2d 883, 884 n.1 (Fla. 4th DCA 1997).
2 Dennis M. Doiron, A Better Interpretation of the Wrongful Death Act, 43 Me. L. Rev. 449 (1991),
https://core.ac.uk/download/pdf/304932065.pdf (last visited Feb. 10, 2024).
3 Id.
4 Id.; s. 768.17, F.S.
5 Ss. 768.16 – 26, F.S.
6 S. 768.19, F.S.
7 S. 768.20, F.S.
8 S. 768.21, F.S.
9 S. 768.21(6), F.S.
10 S. 768.18(1), F.S.
11 S. 768.21(1), F.S.
12 Id.
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  Loss of companionship and guidance in certain circumstances;13
 Mental pain and suffering if the family member seeking damages is:
o A surviving spouse;14
o A child of the deceased who is under 25 years of age;
o A child of the deceased who is 25 years of age or older, if there is no surviving spouse;15
o A parent of a deceased child who was under 25 years of age;
o A parent of a deceased child who was 25 years of age or older who had no surviving
spouse or children;16 and
 Compensation for medical and funeral expenses the family member has paid for the
deceased.17
However, the Act also provides that, in the case of the death of a parent due to medical negligence, a
child who is 25 years of age or older may not seek noneconomic damages (such as damages for
mental pain and suffering); and, in the case of the death of a child who was 25 years of age or older
due to medical negligence, a surviving parent may not seek noneconomic damages.18
Civil Remedies for the Death of an Unborn Child
In the 1978 case of Duncan v. Flynn, the Florida Supreme Court held that, legally speaking, an unborn
fetus is not a “person” for purposes of Florida’s Wrongful Death Act (Act). In turn, when a person
causes the death of an unborn child, the child’s parents cannot recover civil damages under the Act for
the child’s death.19
In 1997, in Tanner v. Hartog, the Florida Supreme Court reiterated that “there is no cause of action
under Florida’s Wrongful Death Act for the death of a stillborn fetus.” 20 However, in that same case, the
Court recognized a common law action for “negligent stillbirth.” The Court emphasized that the
damages recoverable in such an action are limited to mental pain and anguish and medical expenses
incurred incident to the pregnancy, and that such legal action is different from an action under the
Wrongful Death Act, as follows:
A suit for negligent stillbirth is a direct common law action by the parents which is different
in kind from a wrongful death action. The former is directed toward the death of a fetus
while the latter is applicable to the death of a living person. As contrasted to the damages
recoverable by parents under the wrongful death statute, the damages recoverable in an
action for negligent stillbirth would be limited to mental pain and anguish and medical
expenses incurred incident to the pregnancy.21
Therefore, although Florida allows a limited recovery of damages for negligent stillbirth, it does not
currently recognize a cause of action for wrongful death based on the death of an unborn child.
Other States
Florida remains one of six states, including California and New York,22 that does not currently recognize
a cause of action for the wrongful death of an unborn child.23 Forty-three states currently do allow for a
13 S. 768.21(2)-(3), F.S.
14
S. 768.21(2), F.S.
15 S. 768.21(3), F.S.
16 S. 768.21(4), F.S.
17 S. 768.21(5), F.S.
18 S. 768.21(8), F.S.
19 Singleton v. Ranz, 534 So. 2d 847, 847 (Fla. 5th DCA 1988)(citing Duncan v. Flynn, 358 So. 2d 178, 178 (Fla. 1978)).
20 Tanner v. Hartog, 696 So. 2d 705, 706 (Fla. 1997).
21 Tanner, 696 So. 2d at 708-09.
22 Rosales v. Northeast Community Clinic, B276465, 2018 WL 1633068, at *2 (Cal. Ct. App. Apr. 5, 2018); Endresz v. Friedb erg, 24
N.Y. 2d 478, 484 (N.Y. 1969).
23 Stern v. Miller, 348 So. 2d 303, 307–08 (Fla. 1977); The three other states include Iowa, Maine, and New Jersey. Dunn v. Rose Way,
Inc., 333 N.W. 2d 830, 831 (Iowa 1983); Shaw v. Jendzejec, 717 A.2d 367, 371 (Me. 1998); Giardina v. Bennett, 111 N.J. 412, 421–25
(N.J. 1988).
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 cause of action for the wrongful death of an unborn child, depending on the viability24 of the child in
question.25
Fifteen states afford a cause of action for the wrongful death of an unborn child at any stage of
development.26 Several of these states, however, provide an exception so that the mother cannot be
sued for the wrongful death of her unborn child.27
Three states, including Connecticut,28 Georgia,29 and Mississippi,30 permit a wrongful death action to be
brought on behalf of an unborn child if the quickening standard is met, which requires fetal movement
to have been detected prior to death.31
Twenty-five states permit a cause of action for the wrongful death of an unborn child under a viability
standard, which examines whether an unborn child can exist independently outside of the mother’s
womb.32 Of these 25 states, one state, Indiana, prohibits a wrongful death action where the death is of
an unborn child as the result of a lawful abortion.33
Finally, one state, Wyoming, remains undecided as to whether a cause of action for wrongful death
exists as to an unborn child.34
Effect of Proposed Changes
CS/CS/HB 651 amends ss. 768.18 and 768.21, F.S., to expand Florida’s Wrongful Death Act (Act) to
allow parents of an unborn child to recover civil damages for such unborn child’s death in the same way
that other survivors may generally recover under the Act. The bill accomplishes this by amending the
definition of “survivors” to include parents of an unborn child and by specifically providing that parents
of an unborn child may also recover for mental pain and suffering from the date of injury. Under the bill,
the parents in such a wrongful death suit could potentially recover damages allowed by the Act,
24 “Viability” is the ability of a developing fetus to survive independent of a pregnant woman’s womb. Elizabeth Chloe Romanis, Is
“viab ility” viab le? Ab ortion, conceptual confusion and the law in England and Wales and the United States, 7 J. Law. Biosci. (Jan.-Dec.
2020).
25 Only Wyoming remains undecided as to whether a cause of action for wrongful death exists as to an unborn child.
26 Alabama (Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012); Mack v. Carmack , 79 So. 3d 597 (Ala. 2011)); Alaska (Alaska Stat. Ann. §
09.55.585); Arkansas (Ark. Code Ann. § 15-62-102); Illinois (740 Ill. Comp. Stat. Ann. 180/2.2); Kansas (Kan. Stat. Ann. § 60-1901);
Louisiana (Louisiana Civil Code Art. 26); Michigan (Mich. Comp. Laws Ann. § 600.2922a); Missouri (Mo. Ann. Stat. § 1.205); Nebraska
(Neb. Rev. Stat. § 30-809); Oklahoma (12 Okl. St. Ann. § 1053, OK ST T. 12 § 1053; Pino v. United States, 2008 OK 26, 183 P.3d
1001); South Dakota (S.D. Codified Laws §21-5-1); Texas (Tex. Civ. Prac. & Rem. Code § 71.002); Utah (Carranza v. United States,
2011 UT 80, 267 P.3d 912); Virginia (Va. Code. Ann. §§8.01 -50); West Virginia (Farley v. Sarti, 195 W. Va. 671, 681 (1995)).
27 See Kan. Stat. Ann. § 60-1901; Tex. Civ. Prac. & Rem. Code § 71.003.
28
Elderkin v. Mahoney, No. No. CV156056191, 2017 WL 5178583 (Conn. Super. Ct. Sept. 28, 2017).
29 Porter v. Lassiter, 91 Ga. App. 712 (1955); Shirley v. Bacon, 154 Ga. App. 203 (1980).
30 Miss. Code Ann. § 11-7-13 (2018).
31 Romanis, supra, note 24.
32
Arizona (Summerfield v. Superior Ct. in and for Maricopa County, 144 Ariz. 467 (Ariz. 1985)); Colorado (Gonzales v. Mascarenas,
190 P. 3d 826 (Colo. App. 2008)); Delaware (Worgan v. Greggo & Ferrera, Inc., 50 Del. 258 (Del. Super. Ct. 1956)); Hawaii (Hawaii
Castro v. Melchor, 137 Hawai’i 179 (Haw. Ct. App. 2016); Idaho (Volk v. Baldazo, 103 Idaho 570 (Idaho 1982); Indiana (Ind. Code Ann.
§34-23-2-1(b)); Kentucky (Stevens v. Flynn, No. 2010-CA-00196-MR, 2011 WL 3207952 (Ky. Ct. App. July 29,2011); Maryland (Brown
v. Contemporary OB/GYN Assocs., 143 Md. App. 199 (Md. Ct. Spec. App. 2002); Md. Code Ann., Cts. & Jud. Proc. §§ 3 -902, 3-904);
Massachusetts (Thib ert v. Milka, 419 Mass. 693 (Mass. 1995)); Minnesota (Pehrson v. Kistner, 301 Minn. 299 (Minn. 1974)); Montana
(Blackb urn v. Blue Mt. Women’s Clinic, 286 Mont. 60 (Mont.1997)); Nevada (White v. Yup, 85 Nev. 527 (Nev. 1969)); New Hampshire
(Wallace v. Wallace, 120 N.H. 675 (N.H. 1980)); New Mexico (Miller v. Kirk, 120 N.M. 654 (N.M. 1995)); North Carolina (DiDonato v.
Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987)); North Dakota (Hopkins v. McBane, 359 N.W. 2d 862 (N.D. 1984); Ohio (Griffiths v.
Doctor’s Hosp., 150 Ohio App. 3d 234, 2002-Ohio-6173, 780 N.E.2d 603 (2002)); Oregon (LaDu v. Oregon Clinic, P.C., 165 Or. App.
687 (Or. Ct. App. 2000)); Pennsylvania (Coveleski v. Bub nis, 535 Pa.166 (Pa. 1993)); Rhode Island (Miccolis v. AMICA, 587 A. 2d 67
(R.I. 1991)); South Carolina (Crosb y v. Glasscock Trucking, 340 S.C. 626 (S.C. 2000)); Tennessee (Tenn. Code Ann. § 2 0 -5-106(c));
Vermont (Vaillancourt v. Med. Ctr. Hosp. Vt., Inc., 139 Vt. 38 (Vt. 1980)): Washington (Baum v. Burrington, 119 Wash. App.36 (Wash.
Ct. App. 2003)); Wisconsin (Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis. 2d 14 (Wis. 1967).
33
Ind. Code Ann. §34-23-2-1.
34 Wyoming has not determined whether an unborn child is a “person” under the state’s Wrongful Death Act. But, the Wyoming
Supreme Court has held that an unborn child is not a “minor” for whom guardianship statutes authorize the appointment of a guardian.
Matter of Guardianship of MKH, 2016 WY 103, 382 P.3d 1096 (Wyo. 2016).
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 including the value of future loss of support and services, reduced to present value; mental pain and
suffering; and already-paid medical or funeral expenses.
However, the bill also amends s. 768.19, F.S., to clarify that the wrongful death action created by the
bill may not be brought against the mother of the unborn child.
The bill defines “unborn child” to have the same meaning as in s. 775.021(5), F.S., which provides that
the term “unborn child” means a member of the species Homo sapiens, at any stage of development,
who is carried in the womb.
The bill provides an effective date of July 1, 2024.
B. SECTION DIRECTORY:
Section 1: Amends s. 768.18, F.S., relating to definitions.
Section 2: Amends s. 768.19, F.S., relating to right of action.
Section 3: Amends s. 768.21, F.S., relating to damages.
Section 4: Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
See Fiscal Comments.
D. FISCAL COMMENTS:
The bill may have an indeterminate fiscal impact as it expands Florida’s Wrongful Death Act, which may
allow for parents of an unborn child to recover increased monetary damages from state and local
government entities and private individuals party to the suit.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with cou