FRANKFORT, Ky. (Legal Newsline) - A man who limited his prenatal care to sending a $25 Walmart moneygram to the mother of his child can nevertheless sue for a share of the proceeds of a wrongful-death settlement over the baby’s stillbirth, the Kentucky Supreme Court ruled.
Deciding what it described as a murky question for the first time, the high court ruled that a law written to prevent absent parents from cashing in on the death of their children doesn’t apply to fetuses. The decision drew a dissent from three judges including the Chief Justice, who said Kentucky law has long identified fetuses as independent beings and the facts in this case proved the father had abandoned his child from the time he discovered his ex-girlfriend was pregnant.
Lawrence Miller dated Brittany Bunch in the fall of 2013 until he learned she was sleeping with another man, Silas Walker. In November, Bunch showed Miller and Walker a positive pregnancy test. She and Walker began dating after that and stayed together throughout her pregnancy, which ended in a stillbirth in May 2014.
Bunch sued the hospital, saying it mistreated her preeclampsia, naming Walker as the father. But Miller filed a motion to intervene after he learned of the suit and won a court order mandating DNA testing that showed he was the father. Bunch settled in 2019 and sought a court order denying Miller any of the proceeds under Mandy Jo’s Law, which prohibits a parent who has “willfully abandoned the care and maintenance of his or her child” from sharing in wrongful-death proceeds.
A trial court agreed after hearing evidence that Miller didn’t ask if he was the father back in 2013 or offer any other support other than a $25 money gram in January or February of 2014.
“Mr. Miller did come to the hospital on the day Autumn was born, but Ms. Bunch believed he was high and made him leave,” the court said. “When confronted with the fact that she named Mr. Walker as Autumn’s father in her wrongful death action against the hospital, Ms. Bunch stated that she did so because `he could have been her father.’”
Miller said he was not high when he came to the hospital and left only when he said something about fighting Walker. The trial court ultimately found Bunch was more credible and that Mandy Jo’s Law applied because it concerns the proceeds of wrongful death suits and Kentucky law allows wrongful death suits over the death of a viable fetus. The court also found that Miller had “willfully abandoned” the fetus from the time he learned Bunch was pregnant.
The Kentucky Court of Appeals affirmed, adopting the same reasoning as the trial court. But Supreme Court reversed, saying the lower courts misinterpreted Mandy Jo’s Law to include unborn children even as it affirmed Kentucky law generally does identify the fetus as a separate human being with legal rights.
The law’s purpose, the court said, was to prevent parents who neglect their children “from enriching themselves in the event that the child predeceases them.” It was a “murkier question” whether the law includes stillborn children, however, and the Kentucky Supreme Court decided it doesn’t.
The law provides exceptions for parents who resumed support of their children within a year of their death, or who lost custody in a divorce but complied with all child-support orders. That means the phrase “care and maintenance” refers to living children, the court concluded, not unborn ones.
“It smacks of injustice to require a man who did not know for certain that the child was his until well after her death to provide financial and emotional support to the child’s mother during her pregnancy,” the court concluded. “It also unfairly presumes that, had Autumn lived post-birth, Mr. Miller would not have sought custody rights once his paternity was confirmed.”
Justice Christopher Shea Nickell dissented, joined by Chief Justice John Minton and Justice Michelle Keller. He said Kentucky courts established the rule a “viable fetus” was a separate human being from the mother by the 1950s. Since then the Kentucky legislature has passed laws declaring the fetus to be a human being from the moment of conception. Other states have adopted the concept of parental abandonment of a fetus, he wrote, and the U.S. Supreme Court “at least tacitly” supported it in Adoptive Couple v. Baby Girl in 2013 when it ruled the Indian Welfare Act didn’t apply to absent fathers.
“Although neither of the litigants arguably come to this case with clean hands …I must conclude the trial court’s findings of fact were supported by substantial evidence as correctly held by the Court of Appeals,” the judge wrote. “I cannot say the trial court abused its discretion in finding Miller abandoned Autumn and was therefore precluded from sharing in the settlement proceeds resulting from her untimely passing.”