Una coppia aziona il diritto risarcitorio (contrattuale) per omessa vigilanza verso il rischio di distruzione di embrioni crioconservati, azionando une legge del 1872, the Wrongful Death of a Minor Act.
In primo grado la domanda è rigettata per una generale regola di irrisarcibilità della perdita della vita e, sopratutto, per una speciale regola relativa al concetto normativo di “child”.
La corte suprema 16 febbraio 2024 , n° SC-2022-0515 , James Le Page ed altri v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical r... invece annulla poichè fa rientrare in tale concetto tutti gli “unborn children”, sia in utero che dotati di vita (anche se attualmente criocongelati) extrauterina , come nel caso de quo (questa la pag. del relativo docket/fascicolo processuale).
Dice che tanto nella legge quanto nel linguaggio comune nulla fa ritenere corretto escludere la seconda categoria.
<<Before analyzing the parties’ disagreement about the scope of the
Wrongful Death of a Minor Act, we begin by explaining some background
points of agreement. All parties to these cases, like all members of this
Court, agree that an unborn child is a genetically unique human being
whose life begins at fertilization and ends at death. The parties further
agree that an unborn child usually qualifies as a “human life,” “human
being,” or “person,” as those words are used in ordinary conversation and
in the text of Alabama’s wrongful-death statutes. That is true, as
everyone acknowledges, throughout all stages of an unborn child’s
development, regardless of viability.
The question on which the parties disagree is whether there exists
an unwritten exception to that rule for unborn children who are not
physically located “in utero” — that is, inside a biological uterus — at the
time they are killed. The defendants argue that this Court should
recognize such an exception because, they say, an unborn child ceases to
qualify as a “child or “person” if that child is not contained within a
biological womb>. p. 8
<<But these cases do not require the
Court to resolve them because, as explained below, neither the text of the
Wrongful Death of a Minor Act nor this Court’s precedents exclude
extrauterine children from the Act’s coverage. Unborn children are
“children” under the Act, without exception based on developmental
stage, physical location, or any other ancillary characteristics.>> p. 11
E sopratuttto alle pp. 15-17:
<<Courts interpreting statutes are required to give words their
” ‘ “natural, ordinary, commonly understood meaning,” ‘ ” unless there is
some textual indication that an unusual or technical meaning applies.
Swindle v. Remington, 291 So. 3d 439, 457 (Ala. 2019) (citations omitted).
Here, the parties have not pointed us to any such indication, which
reflects the overwhelming consensus in this State that an unborn child is
just as much a “child” under the law as he or she is a “child” in everyday
conversation.
Even if the word “child” were ambiguous, however, the Alabama
Constitution would require courts to resolve the ambiguity in favor of protecting unborn life. Article I, § 36.06(b), of the Constitution of 2022
“acknowledges, declares, and affirms that it is the public policy of this
state to ensure the protection of the rights of the unborn child in all
manners and measures lawful and appropriate.” That section, which is
titled “Sanctity of Unborn Life,” operates in this context as a
constitutionally imposed canon of construction, directing courts to
construe ambiguous statutes in a way that “protect[s] … the rights of the
unborn child” equally with the rights of born children, whenever such
construction is “lawful and appropriate.”. When it comes to the
Wrongful Death of a Minor Act, that means coming down on the side of including, rather than excluding, children who have not yet been born.
The upshot here is that the phrase “minor child” means the same
thing in the Wrongful Death of a Minor Act as it does in everyday
parlance: “an unborn or recently born” individual member of the human
species, from fertilization until the age of majority>>.