Georgia law allows recovery for the death of an unborn child in certain circumstances. Whether the death of an unborn child can support a claim depends on the stage of development the unborn child had reached and on the statutes that define when legal recognition begins. This guide explains how Georgia law treats the wrongful death of an unborn child.
The Statutory Basis for Recovery
The right to recover for the homicide of a child in Georgia is set out in O.C.G.A. Section 19-7-1, which addresses recovery by a parent for the death of a child, and in the wrongful death chapter at O.C.G.A. Sections 51-4-1 through 51-4-5. O.C.G.A. Section 19-7-1 expressly addresses the homicide of an unborn child as well as a born child.
Under O.C.G.A. Section 19-7-1, the right to recover for the full value of the life of an unborn child begins at the point at which a detectable human heartbeat is present. The statute ties this point to the definition found in O.C.G.A. Section 1-2-1.
The Detectable Human Heartbeat Standard
The current standard turns on the presence of a detectable human heartbeat. Georgia law defines a detectable human heartbeat as embryonic or fetal cardiac activity, described as the steady and repetitive rhythmic contraction of the heart within the gestational sac.
This standard was introduced through House Bill 481, the Living Infants Fairness and Equality Act, enacted in 2019. That legislation amended several parts of Georgia law and, among other things, revised O.C.G.A. Section 1-2-1 so that the definition of a natural person includes an unborn child with a detectable human heartbeat. The same legislation tied the right of parents to recover for the homicide of an unborn child to that same point of development.
In practical terms, this means that under current Georgia law a wrongful death type of recovery for an unborn child becomes available once the unborn child has reached the stage where cardiac activity can be detected. Before that point, the statutory right to recover for the full value of the life of the unborn child has not yet begun.
The Earlier “Quick Child” Standard
The detectable human heartbeat standard represents a change from the older approach. For many years, Georgia law allowed recovery for the death of an unborn child only if the child was “quick,” meaning the child had developed to the stage of movement in the womb traditionally described as quickening. Georgia courts applied that older standard before the statutory changes.
The 2019 legislation moved Georgia from the quickening concept to the detectable human heartbeat concept, which generally identifies an earlier point in development. Because the law in this area has changed and continues to be the subject of legal challenges, the precise standard that applies to a particular death can depend on when the death occurred and the procedural posture of any related litigation. This is an area where the law has evolved, and a careful reading of the current statutes is necessary to understand the standard in force.
Who May Bring the Claim
When an unborn child’s death can support a claim, the right to recover belongs to the parents. O.C.G.A. Section 19-7-1 sets out the order and manner in which parents may recover for the homicide of a child.
Under that statute, if the parents are living together and not divorced, the right is in the parents jointly. If one parent is deceased, the right is in the surviving parent. If both parents are living but are divorced, separated, or living apart, the right is in both parents. The statute also provides that the fact a child was born out of wedlock is not a bar to recovery.
These same parental recovery rules govern the homicide of an unborn child, because the statute addresses unborn children within the same framework.
What Damages Are Available
Georgia measures recovery for the death of a child, including an unborn child who has reached the required stage, by the full value of the life of the decedent. Georgia courts describe the full value of the life as encompassing both the economic value of the life and the intangible value of living. The full value of the life is calculated without deducting the decedent’s personal or necessary expenses.
Georgia’s wrongful death framework does not provide for recovery of the survivors’ own mental anguish or emotional distress as a separate item of damages. The measure focuses on the value of the life that was lost rather than on the grief of the survivors.
Related Criminal and Civil Considerations
Georgia treats harm to an unborn child as a serious matter in both the criminal and civil context. The state has separate criminal statutes addressing feticide and related offenses. The civil right of recovery discussed here is distinct from those criminal provisions. A civil wrongful death type of claim seeks compensation for the family, while criminal prosecution is brought by the state and seeks punishment.
Conclusion
Under Georgia law, the death of an unborn child can support a claim for the full value of the child’s life, but only once the unborn child has reached the point at which a detectable human heartbeat is present, as defined in O.C.G.A. Section 1-2-1 and applied through O.C.G.A. Section 19-7-1. The right to recover belongs to the parents under the order set by statute, and damages are measured by the full value of the life. Because Georgia law in this area changed with the 2019 legislation and remains subject to ongoing legal developments, the applicable standard depends on the timing and circumstances of the particular death.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.