Stillborn Case Analysis
March 19, 2007
Although the decision affirms the court of appeals, the effect is to reverse it in one respect, and leave another important issue undecided.
The court of appeals specifically declined to consider whether Shannon could file a motion under sec. 885.23 in the wrongful death action. In re the Paternity of C.A.V.M., 2006 WI App 104, 718 N.W.2d 729, 738.
In contrast, the Supreme Court reached out, and answered that question in the affirmative. So, in practice, a man claiming to be the father of a stillborn can pursue a wrongful death action, and obtain genetic testing to prove he is the father.
It is noteworthy that, in so holding, the court goes beyond the scope of sec. 885.23. The statute provides only that a party may seek genetic tests to establish parentage.
Section 767.87 provides that evidence related to paternity is not limited to genetic tests, but may include other facts, such as evidence of sexual intercourse, and “all other evidence relevant to the issue of paternity,” save for exceptions not relevant here.
Discussing this provision, the Supreme Court stated that, in the pending wrongful death action, Shannon is not limited to genetic testing, but may present other evidence — including evidence of sexual intercourse, that he resided with the mother, and that he assisted with prenatal care.
The court observed that, in this case, genetic testing may not even be practicable, and the jury will need to consider this other evidence solely.
The court’s decision thus creates the anomaly that a statute that provides for nothing more than genetic testing allows not only the presentation of other evidence, but allows the presentation of that evidence alone, without any genetic testing whatsoever.
The second effect of the court’s decision is that, like that of the court of appeals, it fails to decide whether a mother, or the State, may bring a paternity action against a putative father for prenatal medical expenses incurred, when the fetus is stillborn.
The court of appeals acknowledged the potential issue in a footnote, and stated, “Whether a proper construction of the statute would allow this is an issue we need not resolve in this case.” C.A.V.M., 718 N.W.2d 729, at 735, fn.7.
The Supreme Court affirmed the court of appeals, but did not squarely address the issue either. Instead, it merely held that a man may not bring a paternity action for the purpose of facilitating a wrongful death action.
Thus, if a woman incurs prenatal medical expenses related to her pregnancy, the Supreme Court’s decision does not necessarily preclude her from bringing a paternity action to recover those expenses from the father. The case at bar could be limited to its facts in this respect. Likewise, if those expenses are borne by the State, the State might be able to bring an action for paternity.
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David
Ziemer can be reached by email.
