                                                                              FILED
No. 18-1112 Marwan F. Saleh, M.D. v. Angie Damron, et al.                December 16, 2019
                                                                           EDYTHE NASH GAISER, CLERK
                                                                           SUPREME COURT OF APPEALS
ARMSTEAD, J., dissenting:                                                      OF WEST VIRGINIA


               This case involves a matter of first impression in West Virginia regarding

whether an ectopic embryo meets the definition of a “person” as that term is used in the

West Virginia Wrongful Death Statute, West Virginia Code § 55-7-5 (1931). Because the

West Virginia Legislature has not clearly defined the term “person” in the context of this

statute, this Court must review the language of the statute, the manner in which the

Legislature has dealt with similar questions in other statutes, and the prior decisions of this

Court to provide that definition. Because I believe these authorities weigh in favor of

inclusion of an ectopic embryo within the meaning of “person” as contemplated by the

statute, I respectfully dissent.

               The majority opinion recognizes the governing case in West Virginia which

determined that under our wrongful death statute, West Virginia Code § 55-7-5 (1931), an

unborn child “encompasses a nonviable unborn child and, thus, permits a cause of action

for the tortious death of such child.” Syllabus Point 2, Farley v. Sartin, 195 W. Va. 671,

466 S.E.2d 522 (1995). Inexplicably, the majority opinion proceeds to limit the holding in

Farley and determines that the same unborn child who, while clearly meeting the definition

of “nonviable unborn child” set forth in Farley, somehow loses his or her status as a

“person” after fertilization because the pregnancy is ectopic.



               I agree with the majority opinion that because the Legislature has not clearly

defined “person” that “the absence of a definition has rendered the Wrongful Death Statute
vague with respect to what is meant by the term ‘person’ as used therein.” Saleh v.

Damron, ___ W. Va. ___, ___, ___ S.E.2d ___, ___, 2019 WL 6258406, at *5 (W. Va.

Nov. 22, 2019)(majority opinion).       However, the majority opinion moves one hundred

eighty degrees in the opposite direction of how this Court has held such vagueness should

be resolved. In Farley, this Court clearly determined that, when the Legislature has not

spoken as to the scope of the Wrongful Death Statute, any ambiguity should be resolved in

favor of recovery, holding:

                     The societal and parental loss is egregious regardless of
              the state of fetal development. Our concern reflects the
              fundamental value determination of our society that life—old,
              young, and prospective—should not be wrongfully taken
              away. In the absence of legislative direction, the overriding
              importance of the interest that we have identified merits
              judicial recognition and protection by imposing the most
              liberal means of recovery that our law permits.

Farley, 195 W. Va. 671, 682, 466 S.E.2d 522, 533 (1995) (emphasis added). In the present

case, the majority opinion imposes, not the “most liberal means of recovery” but a

restrictive interpretation that is unfounded in law or logic.

              To reach its conclusion, the majority first cites other statutory enactments

that it alleges support its determination that an ectopic embryo or ectopic fetus is not a

“person.”1 For example, the majority opinion points to the Unborn Victims of Violence


              1
                    Even if the definitions contained in the Unborn Victims of Violence
Act supported the majority opinion, which they do not, such provisions were specifically
excluded by the Legislature from application in civil proceedings such as this:

                     For the purposes of this article, the following definitions
              shall apply: Provided, That these definitions only apply for
              purposes of prosecution of unlawful acts under this section
Act enacted by the Legislature as somehow endowing personhood on an embryo or fetus

only when such unborn child is in utero. See W. Va. Code § 61-2-30 (2005). However,

that Act clearly states: “‘Embryo’ means the developing human in its early stages. The

embryonic period commences at fertilization and continues to the end of the embryonic

period and the beginning of the fetal period, which occurs eight weeks after fertilization or

ten weeks after the onset of the last menstrual period.” W. Va. Code § 61-2-30(b) (2005).

Certainly, at the point of fertilization, which is the beginning of the embryonic period as

defined by the Act, the unborn child is not “in utero.” Nonetheless, the Legislature defined

“embryo” as a point in human development that begins at fertilization.

              Moreover, the Legislature carved out several specific exceptions to the

Unborn Victims of Violence Act, including exception (3), which states that the provisions

of the section do not apply to “[a]cts or omissions by medical or health care personnel or

scientific research personnel in performing lawful procedures involving embryos that are

not in a stage of gestation in utero;” W. Va. Code § 61-2-30(d)(3) (2005)(emphasis added).

If, as the majority opinion states, the Legislature intended for the general language of

Unborn Victims of Violence Act to use the terms “in the womb” and “in utero” as

synonymous and to apply the Act only to unborn children in the uterus, such language




              and may not otherwise be used: (i) To create or to imply that
              a civil cause of action exists; or (ii) for purposes of argument
              in a civil cause of action, unless there has been a criminal
              conviction under this section.

W. Va. Code § 61-2-30(b) (2005) (emphasis added).
carving out an exception for certain medical procedures involving embryos “not in a stage

of gestation in utero” would be entirely unnecessary. In other words, the exception proves

the rule.2

              Likewise, while citing the The Pain-Capable Unborn Child Protection Act in

support of it position that an ectopic embryo or ectopic fetus is not a “person,” the majority

opinion fails to acknowledge that such Act established that an unborn child exists at the

time an ovum is fertilized by spermatozoon. See W. Va. Code § 16-2M-2(3) (2005); See

also W. Va. Code § 16-2M-1(1) (2005) (“Pain receptors (unborn child’s entire body

nociceptors) are present no later than sixteen weeks after fertilization . . . .”)(emphasis

added); W. Va. Code § 16-2M-1(2) (2005) (“By eight weeks after fertilization, the unborn

child reacts to stimuli. . . .”)(emphasis added). The enactments of the Legislature cited by

the majority opinion simply do not support the conclusion that an ectopic embryo or an

ectopic fetus is not a “person” under the Wrongful Death Statute. Instead, the legislative

enactments cited by the majority reflect the Legislature’s continued intent to recognize the

overriding principle, as was annunciated by this Court in Farley, that “life – old, young,

and prospective – should not be wrongfully taken away.” Farley, 195 W. Va. 671, 682,

466 S.E.2d 522, 533 (1995).




              2
                      Although subject headings of statutory code sections and articles are
not black letter law, it is telling that, in the context of defining the term “person” in this
action, the Unborn Victims of Violence Act is contained within Article 2 of Chapter 61 of
the Code, entitled “Crimes against the Person” See W. Va. Code § 61-2 (article title)
(emphasis added).
              The majority opinion relies heavily on the dicta contained in Footnote 3 of

Farley which states “[w]e also explicitly limit this holding to unborn children who are en

ventre sa mere and decline to address the issues that may arise with advances in medical

technology now enabling conception outside the womb.” Farley, 195 W. Va. 671, 672 n.3,

466 S.E.2d 522, 524 n.3 (1995). A clear reading of such language, however, does not

support the giant leap taken by the majority opinion to reach its conclusion that this

language bars recovery for the death of ectopic embryos or ectopic fetuses simply because

they are not located in utero. This footnote expressly states that the Farley opinion does

not address situations relating to medical advancements that allow “conception outside of

the womb.” Id. Clearly, this language was designed to distinguish the Court’s holding from

scenarios involving medically enabled “conception” outside of the woman’s body. The

majority opinion’s leap to equate “outside the womb” with “outside the uterus” in all cases

is misplaced. In a normal pregnancy, conception or fertilization does not typically take

place in the uterus, but instead the fertilized egg implants into the uterus after fertilization.

The majority opinion over-emphasizes and misinterprets this footnote as barring

application of the Wrongful Death Statute to the death of any unborn child outside of the

uterus. It clearly does not. Indeed, the sentence that precedes the portion of the footnote

cited by the majority opinion states that, as used in the opinion the term “unborn child” is

used to “encompass all stages of development after conception.” Id. In its summary, the

Farley Court concluded that “if death ensues as a result of a tortuously inflicted injury to a

nonviable unborn child, the personal representative of the deceased may maintain an
action pursuant to our wrongful death statute.” Id., 195 W. Va. 671, 684, 466 S.E.2d 522,

535 (1995).

              Despite the language in Farley that clearly states our wrongful death statute

should be “liberally construed,” Id., 195 W. Va. 671, 683, 466 S.E.2d 522, 534 (1995), the

majority opinion has, conversely, narrowly construed Farley, improperly applied

inapplicable definitions of “fetus” and “embryo,” and stripped an unborn child of its status

as a “person” under the Wrongful Death Statute.

              Finally, the majority opinion has put the proverbial “cart before the horse.”

It is clear from Farley, as well as the statutory definitions of “embryo” contained in the

legislative enactments discussed in both the majority opinion and this dissent, that the

Legislature has determined that an “unborn child” begins development at conception. It is

scientific fact that an ectopic pregnancy or ectopic embryo or ectopic fetus becomes ectopic

after conception and prior to what, in a healthy pregnancy, would be normal implantation

in the uterus. Pursuant to the holding in Farley, the conceived embryo would be considered

a “person” under the Wrongful Death Statute, even though, at that stage of development,

it would be considered nonviable. Indeed, in this case, the unborn child or embryo was

found to have a gestational age of between six weeks one day and six weeks four days with

a heart rate of 142 beats per minute.

              The majority opinion has now declared that, in all cases, because the embryo

failed to implant in the uterus as a healthy pregnancy due to its status as an ectopic

pregnancy or ectopic embryo, the unborn child has lost its status as a “person” under the

Wrongful Death Statute. Thus, regardless of the reasons or causes for the ectopic
pregnancy, and whether or not negligence resulted in the ectopic pregnancy, the mere fact

that it is an ectopic pregnancy bars recovery in a Wrongful Death action. Such a result is

unjust and unsupported by the law. In Farley, this Court held that the mere fact that an

unborn child had not reached viability was not grounds to bar a wrongful death action. In

so finding, the Farley Court held that “[i]n our judgment, justice is denied when a tortfeasor

is permitted to walk away with impunity because of happenstance that the unborn child

had not yet reached viability at the time of death.” Farley, 195 W. Va. 671, 682, 466 S.E.2d

522, 533 (1995). It is unclear at this juncture whether the facts alleged in this case would

establish liability in the event this case was permitted to proceed to trial. However, “justice

is denied” when, regardless of fault, the fact that the pregnancy was ectopic automatically

bars the action from proceeding because the unborn child is not deemed a “person.”

              As this Court held nearly twenty-five years ago in Farley, because the

Legislature has not clearly defined “person” under the Wrongful Death Statute, “it is the

duty of this Court to reach that decision which is most consistent with the purposes of the

wrongful death law and which best comports with our sense of justice.” In light of the

language of the Wrongful Death Statute, our holding in Farley, as well as the language of

subsequent enactments of the Legislature, I believe that recognition of an ectopic embryo

or ectopic fetus as a “person” under the Wrongful Death Statute is the result which is most

consistent with the purposes of such Act.

              For these reasons, I respectfully dissent.
