Illinois | FAQs

Can I recover damages for the death of my unborn child in Illinois?

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You may be able to file a legal claim if someone’s negligence results in a miscarriage

You are suffering from the unexpected and unnecessary loss of your unborn child. Different states have different rules about whether you can make a legal recovery for this type of loss.

In Illinois, the answer is: “it depends.”

Do You Have a Case?

In 1978, the Supreme Court of Illinois held that parents could recover for the wrongful death of an unborn infant if that infant was viable separate and independent of the mother at the time of death. Of course, all of the elements of a wrongful death case would also have to be established.

In other words, you would need evidence to prove that:

  • The person who caused the accident had a duty of care.
  • The person who caused the accident breached that duty of care by failing to act as a reasonable person would in similar circumstances.
  • The breach of the duty of care was the cause of your unborn baby’s death.
  • You have the legal right to recover damages because you are the parent of the unborn baby and the baby would have been able to survive if it had been born at the time of the accident.

Expert testimony from a doctor about whether your baby would have been able to survive outside of the womb at the time of the crash may be required in order for you to prove your case.

What Can You Recover?

If you can prove the elements of a wrongful death of a viable unborn infant, then you may be able to recover pecuniary damages for the loss of your child. This may include loss of society. Loss of society refers to the loss of your family relationship and includes damages for things such as love, companionship, and comfort.

As with all damages, you will need to prove the value of your loss of society to the court or to the insurance company in order to recover fair damages. This can be difficult to do, but it is important both for your recovery and for holding the person who caused your child’s death accountable.

If you have suffered this type of tragic loss, please contact an experienced and empathetic lawyer who is committed to fighting for your fair and just recovery today. We can be reached via this website or by phone at any time, and we would be pleased to provide you with a free, no-obligation consultation.

Jason F. Abraham
Managing Partner, Hupy and Abraham