Letter to the Editor Miami Herald

75 Valencia Avenue, Suite 100, Coral Gables, Florida 33134
(305) 577-3777 – Phone
(305) 854-2603 – Fax
jeff@jeffdavislaw.com – Email
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Re: Hypocritical

Dear Sir/Madam:

The dictionary defines hypocritical as behaving in a way that suggests one has higher standards or more noble beliefs then is the case. When it comes to protecting the rights of the unborn, Florida is hypocritical. Following the recent abortion legislation in Texas, Florida republicans plan to take up their own anti-abortion legislation early next year. Recently, Florida Senate President Wilton Simson reported to the media that Florida lawmakers are working on a so-called heartbeat bill. States like Ohio and Texas have banned abortion as early as 6-weeks into a pregnancy. House Speaker Chris Sprowles has said, “in Florida, we agree that killing an innocent human being with a beating heart is wrong. It is why we have worked every session to strengthen protections for unborn babies…”.

Abortion laws like the one recently enacted in Texas are designed to ostensibly protect an unborn fetus. According to these lawmakers, an unborn fetus is a new human being or person. If this is really what they believe, why does Florida law prevent parents from being able to bring a lawsuit for the death of an unborn child?

The Florida Supreme Court has held an unborn fetus is not a person under the Wrongful Death Act. In a rather tortured and narrow ruling, the Florida Supreme Court in Tanner v. Hartog, in 1997, created a very limited and narrow exception to this prohibition against lawsuits for the death of a fetus when they allowed Mrs. Tanner to bring a claim when she experienced a stillbirth during her 41st week of pregnancy. The court fashioned a remedy by giving the parents a cause of action for negligent stillbirth however stated that since the fetus is not a living person, there is no claim under the wrongful death statute. The damages recoverable in an action for negligent stillbirth are limited to mental pain and anguish and, medical expenses incurred as a result of the pregnancy.

How can be both sets of laws; a restriction on abortion for “killing an unborn person” and a prohibition on civil lawsuits for “killing an unborn person” exist in Florida simultaneously? This is a prime example of legislative hypocrisy and should be corrected while abortion legislation is being contemplated. Florida should grant the parents that suffer the loss of an unborn fetus as a result of someone’s negligence the right to bring a wrongful death action for that unborn person.

Very truly yours,
Jeffrey R. Davis