THE BILL ITSELF
CS/HB 289
Civil Liability for the Wrongful Death of an Unborn Child
1
A bill to be entitled
2
An act relating to civil liability for the wrongful
3
death of an unborn child; reordering and amending s.
4
768.18, F.S.; revising the definition of the term
5
"survivors" to include the parents of an unborn child;
6
providing a definition for the term "unborn child";
7
amending s. 768.19, F.S.; prohibiting a right of
8
action against the mother for the wrongful death of an
9
unborn child or against a health care provider for
10
lawful medical care provided in certain circumstances;
11
amending s. 768.21, F.S.; authorizing parents of an
12
unborn child to recover certain damages; prohibiting
13
the recovery of certain damages if the decedent is an
14
unborn child; conforming a cross-reference; providing
15
an effective date.
17
Be It Enacted by the Legislature of the State of Florida:
19
Section 1. Section 768.18, Florida Statutes, is reordered
20
and amended to read:
21
768.18 Definitions.—As used in ss. 768.16-768.26:
22
(1)(2) "Minor children" means children under 25 years of
23
age, notwithstanding the age of majority.
24
(2)(5) "Net accumulations" means the part of the
25
decedent's expected net business or salary income, including
26
pension benefits, that the decedent probably would have retained
27
as savings and left as part of her or his estate if the decedent
28
had lived her or his normal life expectancy. "Net business or
29
salary income" is the part of the decedent's probable gross
30
income after taxes, excluding income from investments continuing
31
beyond death, that remains after deducting the decedent's
32
personal expenses and support of survivors, excluding
33
contributions in kind.
34
(3)(4) "Services" means tasks, usually of a household
35
nature, regularly performed by the decedent that will be a
36
necessary expense to the survivors of the decedent. These
37
services may vary according to the identity of the decedent and
38
survivor and shall be determined under the particular facts of
39
each case.
40
(4)(3) "Support" includes contributions in kind as well as
41
money.
42
(5)(1) "Survivors" means the decedent's spouse, children,
43
parents, and, when partly or wholly dependent on the decedent
44
for support or services, any blood relatives and adoptive
45
brothers and sisters. It includes the child born out of wedlock
46
of a mother, but not the child born out of wedlock of the father
47
unless the father has recognized a responsibility for the
48
child's support. It also includes the parents of an unborn
49
child.
50
(6) "Unborn child" has the same meaning as in s.
51
775.021(5)(e).
52
Section 2. Section 768.19, Florida Statutes, is amended to
53
read:
54
768.19 Right of action.—
55
(1) When the death of a person is caused by the wrongful
56
act, negligence, default, or breach of contract or warranty of
57
any person, including those occurring on navigable waters, and
58
the event would have entitled the person injured to maintain an
59
action and recover damages if death had not ensued, the person
60
or watercraft that would have been liable in damages if death
61
had not ensued shall be liable for damages as specified in this
62
act notwithstanding the death of the person injured, although
63
death was caused under circumstances constituting a felony.
64
(2) Notwithstanding any other provision of this act, a
65
wrongful death action for the death of an unborn child may not
66
be brought against the mother of the unborn child, or against a
67
health care provider as defined in s. 766.202, for lawful
68
medical care provided in compliance with the applicable standard
69
of care, including, but not limited to, care related to assisted
70
reproductive technologies as defined in s. 742.13, provided with
71
the consent of the mother.
72
Section 3. Subsection (4) and paragraph (a) of subsection
73
(6) of section 768.21, Florida Statutes, are amended to read:
74
768.21 Damages.—All potential beneficiaries of a recovery
75
for wrongful death, including the decedent's estate, shall be
76
identified in the complaint, and their relationships to the
77
decedent shall be alleged. Damages may be awarded as follows:
78
(4) Each parent of a deceased minor child or an unborn
79
child may also recover for mental pain and suffering from the
80
date of injury. Each parent of an adult child may also recover
81
for mental pain and suffering if there are no other survivors.
82
(6) The decedent's personal representative may recover for
83
the decedent's estate the following:
84
(a) Loss of earnings of the deceased from the date of
85
injury to the date of death, less lost support of survivors
86
excluding contributions in kind, with interest. Loss of the
87
prospective net accumulations of an estate, which might
88
reasonably have been expected but for the wrongful death,
89
reduced to present money value, may also be recovered:
90
1. If the decedent's survivors include a surviving spouse
91
or lineal descendants; or
92
2. If the decedent is not a minor child or an unborn child
93
as those terms are defined in s. 768.18 s. 768.18(2), there are
94
no lost support and services recoverable under subsection (1),
95
and there is a surviving parent.
97
Evidence of remarriage of the decedent's spouse is admissible.
98
Section 4. This act shall take effect July 1, 2026.