Court rules fetus a person in lawsuit

Friday, May 11th 2001, 12:00 am

By: News On 6

LITTLE ROCK, Arkansas (AP) -- The Arkansas Supreme Court ruled that a fetus is a person in a wrongful-death lawsuit brought by a man whose wife and unborn child died during birth procedures.

In reversing a lower court on Thursday, the Supreme Court cited a 1999 law that changed the state's criminal code to include a living fetus of 12 weeks gestation in the definition of a person.

The case stemmed from the December 13, 1995, death of Evangeline Aka and her unborn son about 30 hours after she was admitted to the hospital so labor could be induced.

Aka's husband, Philip, claimed the defendants were medically negligent in unnecessarily inducing his wife's labor, failing to discontinue the procedure, failing to perform a caesarean section, failing to resuscitate his wife or the unborn baby and failing to obtain informed consent.

"Given this amended definition of 'person,' the Legislature plainly affords protection to unborn viable fetuses," Chief Justice W.H. "Dub" Arnold wrote for the court.

A circuit judge ruled in early 1999 against Aka's claims, citing a Supreme Court ruling that a fetus was not a person in wrongful-death actions.

Later that year, the Legislature approved a law specifying that an unborn fetus could be considered a person for some purposes in criminal law.

"The relevance of the Legislature's response, by statutorily defining person in the criminal context to include a fetus, cannot be understated," Arnold wrote.

In a dissenting opinion, Justice Robert L. Brown said he agreed with the lower court ruling that viable fetuses are not considered persons for purposes of wrongful-death cases.

"The majority's reasoning is inconsistent and extremely hard to justify," Brown said. "A decision of this magnitude requires clarity and direction, and not a patchwork quilt woven from disparate statutes, constitutional provisions and Supreme Court decisions."

Brown said he believed the public policy shift didn't occur until this year, with the passage of another law specifically amending the wrongful-death statute to include a viable fetus in the definition of a person.

The act was approved April 4 and won't go into effect until August 14.