Can a fetus be a state employee? Missouri Supreme Court weighs wrongful death claim

Missouri Department of Transportation employee Kaitlyn Anderson was six months pregnant when she was struck and killed by a driver in 2021 while doing road work.

The 25-year-old’s fetus also died in the crash.

Anderson’s death, and the death of her fetus, are now part of wrongful death case against the state agency and her supervisors that was considered by the Missouri Supreme Court on Wednesday. The case, and more specifically the legal status of her fetus, have shined a fresh light on Missouri’s personhood laws, which state that the “life of each human being begins at conception.”

The state Supreme Court will consider whether the case should be a wrongful death lawsuit or a workers’ compensation claim.

But one of the most scrutinized questions the state Supreme Court will have to weigh is whether Anderson’s fetus could also be considered a state employee immune from the wrongful death claim. It is an argument raised by attorneys for Anderson’s supervisors and the state agency and could have far-reaching implications on future civil claims.

Anderson’s family brought the wrongful death lawsuit on behalf of both Anderson and her unborn child, a son named in the lawsuit as Jaxx. It alleges that Anderson’s supervisors at the state agency were negligent and assigned Anderson to work without a safety plan.

Matthew Noce, an attorney for the supervisors, however, argued to the state’s highest court on Wednesday that his clients should be protected from the claim due to the state’s workers’ compensation law. That same legal principle should be applied to Anderson’s fetus, he argued.

Judge W. Brent Powell appeared skeptical of the argument on Wednesday, asking Noce how Jaxx would be considered a “co-employee.” Noce responded that he was not arguing that the unborn child was a “co-employee,” but said the legal principle should apply.

“If there’s no duty owed to the mother, I don’t know how we can create a new duty owed to a fetus by a supervisor,” said Noce, who is seeking an order blocking the lawsuit from moving forward. “I think that’s a slippery and dangerous slope that we would be creating.”

In response, Powell acknowledged that “this is an unborn child,” but cited a hypothetical situation in which Anderson was a pedestrian and not a state employee. He said that her fetus could not be considered a “co-employee” in that situation.

Noce said he agreed.

“What I’m saying is, when there’s no duty owed to the mother, I don’t think you can create one that’s specifically owed to the fetus,” he said.

Christine Anderson, an attorney representing Anderson’s mother, pushed back on the argument on Wednesday, saying that workers’ compensation claims cannot be applied to the fetus because he was not a “co-employee.” She instead pointed to the state’s personhood law.

“It’s very clear in Missouri that unborn children enjoy all the same rights, liberties to life and all the legal privileges that any individual has from the moment of conception,” she said. “Where Anderson went, he went…(the supervisors) placed him basically in a zone of danger.”

Tonya Musskopf, Anderson’s mother, and Austin Jarvis, the father of the unborn child, became emotional when speaking with reporters after the court arguments. Musskopf said the arguments against her lawsuit were “disgusting.”

“Just because you’re a supervisor, you shouldn’t have immunity from everything,” she said. “If anything, you should be held to a higher standard because you are in charge of human lives and for them to blame the six-month-pregnant worker is despicable.”

Michael Wolff, a former Missouri Supreme Court chief justice, said in an interview that the question for the court is whether the unborn child was a person whose death could be compensated to the family.

Wolff questioned the argument that the unborn child would be considered an employee but signaled that the case could still be considered a workers’ compensation case.

“What MoDOT is saying is this is a workers’ comp case because the mother was an employee, right? And so if the mother was unemployed, then so was the kid,” he said. “I don’t know. Somebody’s gotta sort that out.”

While the state Supreme Court considers the case, the ongoing dispute has sparked action in the Missouri General Assembly.

Rep. Dean Van Schoiack, a Savannah Republican, filed a bill called “Jaxx’s Law” that would ban the state and businesses from defining an unborn child as an employee in civil actions. Rep. Michael Burton, a Lakeshire Democrat, also filed an identical bill.

Van Schoiack’s bill was voted out of committee this week. Burton’s legislation has not been scheduled for a hearing.

Musskopf explained to reporters on Wednesday that it was important to add Jaxx, the unborn fetus, to the lawsuit.

“He was very much wanted and very much loved,” she said. “He was a part of my family. He was a part of my everyday life. I couldn’t wait to see that baby.”