Wiersma v. MAPLE LEAP FARMS , 1996 S.D. 16 ( 1996 )

KONENKAMP, Justice (on reassignment).

[¶ 1] In answer to a certified question from the United States District Court, we conclude a cause of action exists in South Dakota for the wrongful death of a nonviable unborn child.

FACTS

[¶ 2] Beth Wiersma contracted salmonella poisoning after eating a portion of Maple Leaf Farms’ chicken cordon bleu. When she was hospitalized on October 8, 1990, she was 7.3 weeks pregnant. Her baby died in útero: an ultrasound test on October 21 revealed no fetal heart sounds. All agree, the child was not viable, thus incapable of living outside the uterus. Beth and her husband, John, brought an action in circuit court on multiple claims, including wrongful death, against Maple Leaf for the loss of their unborn child. Maple Leaf removed the suit to the United States District Court and then filed a motion for summary judgment. United States District Court Judge John B. Jones certified the following legal question for our review:

Does SDCL 21-5-1 provide for a cause of action for wrongful death of an unborn child where a miscarriage at 7.3 weeks of pregnancy is alleged to have been caused by a wrongful act or omission?

DISCUSSION

[¶ 3] I. Statutory Analysis

[¶4] The construction of a statute is a question of law. Stover v. Critchfield, 510 N.W.2d 681, 683 (S.D.1994). We interpret statutes in accord with legislative intent. Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992). Such intent is derived from the plain, ordinary and popular meaning of statutory language. Id. “[IJntent must be determined from the statute as a whole, as well as enactments relating to the same subject.” Id. (citing Border States Paving v. Dept. of Revenue, 437 N.W.2d 872, 874 (S.D.1989); Appeal of AT & T Info. Systems, 405 N.W.2d 24, 27 (S.D.1987); Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 183 (S.D.1986); Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985)). “[W]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ” Whalen, 490 N.W.2d at 280.

[¶ 5] With these rules to guide us, we address the certified question. SDCL 21-5-1 provides:

Whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the administrator or executor of the estate of such person as such administrator or executor, shall be liable, to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such administrator or executor, the damages recovered shall be a valid claim against the estate of such deceased person. However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child. (Emphasis added.)

We presume the Legislature never intends to use surplusage in its enactments, so where possible the law must be construed to give effect to all its provisions. US West Communications v. Public Utilities Comm’n., 505 N.W.2d 115, 128 (S.D.1993) (citing Nelson v. School Bd. of Hill City S.D., 459 N.W.2d 451 (S.D.1990)). The phrase “including an unborn child,” added by amendment in 1984, modifies the word “person,” thus broadening the class of persons on whose loss a wrongful death claim may be asserted. Interpreting the pre-1984 version of this statute, we held the term “person” included a viable unborn fetus. In re Certification of Question of Law from U.S. Dist. Court (Farley), 387 N.W.2d 42 (S.D.1986).¹ To now interpret “unborn child” to mean only a viable fetus would result in the amendment adding nothing to the term “person,” and would negate the legislative purpose of expanding the class of persons covered by the statute.

[¶ 6] When a statute’s language is clear, certain and unambiguous, our function confines us to declare its meaning as plainly expressed. US West Communications, 505 N.W.2d at 123 (citing Appeal of AT & T Information Systems, 405 N.W.2d 24 (S.D.1987)). “Unborn” as defined in its ordinary and popular sense means, not born or brought into being; still within the mother’s womb; not yet delivered; or yet to come or be, future. Webster’s New World Dictionary 1544 (2dCollegeEd 1980). Our Legislature chose not to use embryo or fetus or some other medico-legal designation in its 1984 revision to the statute, but instead chose simply “unborn child.”² Clearly, its intent in using this term was to include any child still within a mother’s womb; no distinction was made between viable and nonviable. Furthermore, the Legislature has subsequently defined “unborn child” in our criminal stat-tes as “an individual organism of the species homo sapiens from fertilization until live birth.”³ SDCL 22-l-2(50A). This later definition, while not controlling, reinforces our interpretation of what the Legislature intended.

[¶ 7] We acknowledge a majority of jurisdictions decline to recognize wrongful death actions for children in útero before viability. Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993) (no cause of action for a 13-week-old fetus); Ferguson v. District of Columbia, 629 A.2d 15 (D.C.App.1993) (non-viable fetus); Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990) (12-week-old fetus); Fryover v. Forbes, 433 Mich. 878, 446 N.W.2d 292 (1989) (12-week-old fetus); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980) (12-week-old fetus); Guyer v. Hugo Publishing Co., 830 P.2d 1393 (Okla.Ct.App.1991) (14-week-old fetus); Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993) (8-week-old fetus); Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67 (R.I.1991) (5-week-old fetus); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958) (5-week-old fetus). Yet none of these authorities interpret a term similar to “unborn child,” but instead consider whether a nonviable child in útero falls within the definition of “person,” “minor child,” “natural person,” or “one.” See generally, Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 ALR3d 411 (1978).

[¶ 8] Other jurisdictions have recognized a cause of action for the wrongful death of a nonviable fetus. See Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955)(cause of action exists after the fetus has “quickened,” or movement occurs within the womb); Smith v. Mercy Hosp. and Medical Center, 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1990)(viability of fetus not necessary to maintain wrongful death action); Connor v. Monkem Co., Inc., 898 S.W.2d 89 (Mo.1995)(parent has valid claim for wrongful death of “unborn child” before viability).⁴

While § 1.205(2) does not mandate any particular result, as would an express amendment of § 537.080, [wrongful death statute] we cannot avoid the conclusion that the legislature intended the courts to interpret “person” within the wrongful death statute to allow a natural parent to state a claim for the wrongful death of his or her unborn child, even prior to viability.

Connor, 898 S.W.2d at 92 (footnote omitted). These courts interpreted their own unique statutes, and although these decisions may be instructive, they are not necessarily authoritative in our analysis. Based on our reading of SDCL 21-5-1, we conclude the Legislature clearly intended to encompass nonviable children in the term “unborn child.” To hold otherwise would contravene the statute’s plain meaning and intent.

[¶ 9] II. Abortion Rights Analysis

[¶ 10] Maple Leaf contends, “[i]t would be inconsistent to provide a cause of action for wrongful death of a nonviable fetus and at the same time under South Dakota law allow for an abortion to take place up to the 24th week of pregnancy....” See SDCL Ch. 34-23A (regulating abortions). This argument has gained favor in Michigan:

If the mother can intentionally terminate the pregnancy at three months, without regard to the rights of the fetus, it becomes increasingly difficult to justify holding a third person liable to the fetus for unknowingly and unintentionally, but negligently, causing the pregnancy to end at the same stage. There would be an inherent conflict in giving the mother the right to terminate the pregnancy yet holding that an action may be brought on behalf of the same fetus under the wrongful death act. (Emphasis added)(footnote omitted).

See Toth v. Goree, 65 Mich.App. 296, 237 N.W.2d 297, 301 (1975) and its progeny. Two matters distinguish this rationale. First, unlike Michigan’s law, South Dakota’s wrongful death statute grants a cause of action for the death of an unborn child to the mother or the lawfully married parents, not to the unborn child. Second, and more fundamentally, the use of abortion rights analysis, simply has no applicability here. A choice to abort sanctions a mother’s decision, not someone else’s. See Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). If we accept Maple Leafs argument, someone could fatally injure an unborn child by a nonconsensual, wrongful act and still avoid civil liability because the child was not yet viable. This would, ironically, give the tortfeasor the same civil rights as the mother to terminate a pregnancy. An Illinois Court rejected a similar argument, stating

Clearly, a pregnant woman who chooses to terminate her pregnancy and the defendant who assaults a pregnant woman, causing the death of her fetus, are not similarly situated. A woman consents to the abortion and has the absolute right, at least during the first trimester of the pregnancy, to choose to terminate the pregnancy. A woman has a privacy interest in terminating her pregnancy; however, defendant has no such interest.

People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189, 1199 (1991).

[¶ 11] Moreover, the concept of viability is outmoded in tort law. “Viability” as a developmental turning point was embraced in abortion cases to balance the privacy rights of a mother as against her unborn child.⁵ For any other purpose, viability is purely an arbitrary milestone from which to reckon a child’s legal existence.

Viability of course does not affect the question of the legal existence of the unborn, and therefore of the defendant’s duty, and it is a most unsatisfactory criterion, since it is a relative matter, depending on the health of the mother and child and many other matters in addition to the stage of development.

W.Page Keeton et al., ProsseR and Keeton on The Law of Torts § 55 at 369 (5thEd 1984)(footnote omitted).

South Dakota’s wrongful death statute preserves the interests of parents in their unborn child and authorizes a remedy when a third party wrongfully ends their child’s life before birth. Parents may seek redress regardless of whether their unborn child was viable. We answer the District Court’s Certified Question, “yes.”

[¶ 13] MILLER, C.J., and SABERS, J., concur. [¶ 14] AMUNDSON, J., dissents. [¶ 15] GILBERTSON, J., not having been a member of the Court at the time this case was considered, did not participate.

1 . This Court stated in Farley that the 1984 amendment did not change or alter the basic substance of SDCL 21-5-1, but merely provided clarification on how the statute is to operate. Farley, 387 N.W.2d at 44. However, the question in Farley was whether, prior to the 1984 amendment, the statute provided a valid cause of action for the death of a viable unborn child. Id. at 43. Hence, any reference in Farley to the 1984 amendment was mere dicta and not binding as legal precedent in this case.

2 . The Legislature was surely aware of Roe v. Wade and its progeny, but chose this terminology perhaps to avoid the viability distinction. See SDCL Ch. 34-23A (regulating performance of abortions). Nothing in Roe prohibits the Legislature from including a nonviable fetus in its definition of a person under our State's wrongful death act. Other states have done it as well, as discussed below. Clearly, neither physicians nor mothers can be held liable for wrongful death when an abortion is performed with the mother’s consent. See SDCL Ch. 34-23A.

3 .The 1995 Legislature adopted this definition to be used in fetal assault and homicide statutes. SDCL 22-16-1.1; 22-16-15, -20; 22-18-1.2, -1.3. These laws do not declare illegal, acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.

4 . The Missouri Legislature enacted general provisions holding that the life of each human being begins at conception; unborn children have pro-tectable interests in life, health, and well-being; and the natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child. See generally Mo. Rev.Stat. § 1.205 (1994). Illinois has also statutorily authorized a wrongful death claim for a nonviable fetus:

The state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default.

Ill.Ann.Stat.Ch. 740, par. 180/2.2 (Smith-Hurd 1992)(original version at Ill.Rev.Stat.Ch. 70, par. 2.2 (1991)).

5 . The right to abort protects a mother's "liberty interest” and “fundamental right to privacy” in voluntarily choosing to end her pregnancy in the first trimester, as reflected in the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).