Damages for the wrongful death of a foetus : is such action viable under Maltese Tort Law?

Abstract

This research will be dealing with damages in case of wrongful death of a foetus arising out of an unjust act either through dolus or through culpa and whether such action would be viable under Maltese law. It will mainly analyse why damages for the death of a foetus should be awarded under Maltese law withstanding whether it would be feasible for the Maltese Legislator to allow for such damages to be awarded. Currently Maltese Law does not cater for any provisions in the law which deal specifically with such matter. Maltese Legislation under the Law of Tort makes use of the word ‘person’ which brings about the debatable argument whether a foetus could possibly constitute a person or not. From this point of view, this research will shift attention to a philosophical argument , as to whether a foetus is to be considered as a person and if it is, when is it to be considered so. This study will hopefully bring this matter into the light for further contribution and perspective, so maybe necessary measures will be taken in the right direction towards a clearer legislation on the damages for the wrongful death of a foetus. There are several to and fro arguments regarding this subject, however it has never come to a concrete conclusion, and for the most part it has been disregarded and left up to the discretion of the Judges.