After long debate, Senate committee OKs changing Wrongful Death Act to cover fetuses

A bill drawing fierce opposition from Democrats, medical professionals and the Florida chapter of the American Civil Liberties Union (ACLU) has advanced through its second of three Senate committees.

After a tense debate, the Appropriations Committee on Criminal and Civil Justice approved SB 164 with a 5-3 vote.

Sen. Erin Grall’s bill would expand Florida’s Wrongful Death Act to cover the death of a fetus, codifying civil liability and allowing parents to sue for damages.

Proponents of the bill insist the Wrongful Death Act must be expanded to give more legal protections to parents suffering from an unfathomable loss. Critics warned that the bill was ripe for abuse and would give a fetus the same legal protections as those living.

“So that means from the moment of conception a fertilized egg would be considered an unborn child compensable for damages?” Sen. Carlos Guillermo Smith asked Grall.

“That is correct,” Grall said.

She pointed to bill language describing an “unborn child” as “a member of the species Homo sapiens at any stage of development who is carried in the womb.”

“My overarching concern here is that the purpose of this bill is to pave the way for legal personhood (for a fetus)” said Smith, an Orlando Democrat. “Is that the intention of this bill and is it also potentially a consequence of this bill?”

Grall, a Fort Pierce Republican, argued her bill’s definition already appears in Florida law, so it is not new in Florida.

“If somebody was looking for that language to pave the way to a personhood argument in front of the Supreme Court, it already exists in our statutes,” Grall said. 

Critics of the bill pointed out that parents can already sue for negligence if they have a stillborn baby, under certain circumstances.

Grall said those lawsuits can only be brought when a pregnant woman is at 20 weeks in development, or halfway along in her pregnancy, and that the civil protection isn’t written into Florida statutes. The parents could also potentially receive more compensation to cover “mental pain and suffering” and for support and services under the Wrongful Death Act than under common law, Grall added.

“It’s about treating life equally in the way that we look at life after a child is born and before a child is born — in terms of how we value it from economic damages … when someone else is at fault for the loss of that life,” Grall said.

Her supporters included the Florida Conference of Catholic Bishops and Christian Family Coalition Florida. Meanwhile, opponents were Planned Parenthood, ACLU of Florida, and Mark Delegal, a lobbyist representing The Doctors Company, the largest insurer of physicians in Florida.

“Florida, unfortunately, has the highest rates in the country for medical malpractice insurance for both hospitals and doctors and this bill is only going to make that worse,” Delegal said.

“When an OB has a choice whether or not to take a patient in his or her practice, they’re going to make a rational decision to avoid high-risk cases where there might be a miscarriage, where there might be then a lawsuit. So sadly, this bill will have the opposite effect of protecting life.”

Under Grall’s bill, the mother could not be sued. But Democrats and other parties concerned with the bill pointed to a lawsuit in Texas where a man sued his ex-wife’s friends for helping her get an abortion.

Kara Gross, the ACLU of Florida’s interim political director, warned that the bill is dangerous because it was so broad. She said it could target medical doctors or others who help a woman get an abortion, or could result in more legal action when a woman suffers a miscarriage.

“These are not hypothetical situations. This is exactly what we saw in Texas and Arizona,” Gross told lawmakers as she voiced concerns about the bill’s lack of a cap on damages and two-year statute of limitations.

The committee took a detour as Sen. Jonathan Martin began testily debating Gross during her public testimony.

“You used the word zygote a couple times, half a dozen times,” the Fort Myers Republican said. “When does a zygote become a human being?”

“I think those are questions that are about individuals’ belief systems and not things that are about the bill here,” Gross asked. “What the bill here does is it treats fertilized eggs, which are zygotes, as people like me and you.”

As Senators then moved to debate each other, Sen. Tina Scott Polsky, a Boca Raton Democrat, voiced the irony that the bill could increase litigation as Florida officials in the past touted tort reform laws to reduce the number of lawsuits in other industries.

Polsky, who went through IVF to become a mother after several miscarriages, said she was fearful about how this bill could be used against frozen embryos.

“Let’s not get into all this hyperbole and definitions of what is an embryo, what is the zygote, what is the value of life?” Polsky said. “I find that completely offensive because this bill talks about litigation and raising economic damages when there already are remedies in law for the unbearable idea of losing a pregnancy through the negligence of another.”

But Republicans were not won over by Polsky and other Democrats’ arguments in a discussion centered around social issues and personal stances.

“Every life does have value, whether the life is in the womb or whether someone is outside the womb,” said Sen. Clay Yarborough, a Jacksonville Republican. “We’ve heard for a long time, life begins at conception. I would actually say to further develop that point, life actually continues at conception because you had two living individuals who came together to keep the life going.”

Earlier this month, the House companion bill (HB 289) advanced and passed on the full House floor with a 76-34 partisan vote.

Grall’s bill has one final committee stop, the Senate Rules Committee, before it reaches the Senate floor. 

This is the third time Grall, who is a lawyer, has filed the bill. 

Just before Wednesday’s vote, Grall said, “I appreciate always this process. Some days it’s frustrating when the words on the page are taken out of context.”