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In 2025, the Italian Supreme Court (Corte di Cassazione) recognised compensation for the death of a foetus as a form of damage arising from parental loss in cases of medical malpractice. Here's how this principle applies and how to take legal action.
The Supreme Court's ruling No. 26826 of 2025 drew attention to medical liability and its implications in cases involving the death of a foetus.
Through this decision, the Court clarified that the intrauterine death of a foetus due to medical negligence may constitute a damage from the loss of the parental relationship, not merely a potential or "projected" loss.
The distinction is crucial: recognising the death of a foetus as parental loss entails more significant compensation criteria and acknowledges the suffering that parents may experience even during pregnancy.
It is therefore important to understand how this damage is proven and how it can be quantified.
Key rulings: Cassation No. 26301/2021 and No. 26826/2025
Two rulings from the Supreme Court guide judges toward recognising the death of a foetus caused by medical error (i.e. malpractice) as a damage from the loss of the parental relationship.
Cassation No. 26301/2021: the jurisprudential foundation
The Supreme Court (Third Civil Section), with order No. 26301 dated 29 September 2021, established a key principle: the prenatal death of a foetus may give rise to non-pecuniary damage, qualifying as a loss of the parental relationship.
According to the Court:
- The inner suffering ("moral damage") experienced by parents is not an isolated element; it can be inferred from simple presumptions and combined with dynamic-relational damage (disruptions in everyday life).
- Psychological phenomena such as panic, nightmares, or changes in daily habits cannot be excluded a priori as being "unrelated" to the compensation claim.
- When quantifying damages, the judge may use the Milan Tables for parental loss as a starting point but is entitled to personalise the assessment according to the specific circumstances of the case.
With ruling No. 26301, the Supreme Court paved the way for a genuine recognition of the suffering endured by parents, even when the child was never born.
Cassation No. 26826/2025
With order No. 26826, filed on 6 October 2025, the Supreme Court consolidated and reinforced this approach, advocating for stronger protection.
The Court:
- Excluded the possibility of automatically halving compensation simply because the emotional relationship "had not yet materialised" in a tangible way.
- Confirmed that the emotional bond between parents and the conceived child can be recognised from the early stages of pregnancy, meaning the loss must be treated as a concrete parental relationship, not a mere expectation.
- Reaffirmed and expanded the principles from ruling No. 26301/2021, clearly distinguishing between moral suffering and dynamic-relational damage, both of which are relevant.
- Stated that when quantifying damages, the Court of Appeal may no longer mechanically reduce compensation but must fully apply the tabular criteria (without automatic reductions) and personalise the amount based on the specific features of the case.
In summary, the death of a foetus is no longer viewed as a "potential" or "projected" harm to be compensated residually, but as the violation of an already existing parental relationship, deserving of adequate compensation—if caused by wrongful conduct by medical personnel.
When compensation is payable: essential requirements
To obtain compensation when medical negligence causes the death of a foetus, several fundamental conditions must be met:
| Requirement | Meaning | Practical Notes / Examples |
|---|---|---|
| Negligent conduct by healthcare professionals | It must be proven that the foetal death resulted from negligence, incompetence, diagnostic omission, or delay in intervention. | The medico-legal expert report (CTU) is crucial to establish causal link and therapeutic probability. |
| Adequate causal link | It must be shown that, had proper conduct been followed, the foetus would have had a concrete chance of survival. | The expert opinion must assess predictive probabilities. |
| Proven moral and relational suffering (even by presumption) | Every psychological detail need not be proven; pain can be inferred through simple presumptions. | Even without psychological documentation, suffering may be "recognised". |
| Contextualised compensation | Compensation is not a "fixed ticket": it must be personalised (age of parents, stage of pregnancy, emotional context). | Tables are only a base; the judge may justify deviations. |
Failure to meet even one of these elements may compromise the validity of the compensation claim.
Personalised Compensation for Foetal Death
In cases where a foetus's death is caused by medical negligence, the judge may adjust the compensation value and:
- Increase it beyond the minimum provided by the tables if there are particular elements of severe, prolonged, or unique suffering.
- Reduce it below the minimum if, for instance, the emotional relationship appeared less established or clinical conditions were already severely compromised.
Recent rulings exclude the automatic 50% reduction (previously applied by some Courts of Appeal in foetal cases): any reduction must now be supported by detailed reasoning.
Example of compensation for foetal death
If a woman near the end of pregnancy, showing clear signs of foetal distress, were not promptly given a caesarean section, and the foetus died as a result, the court would likely award approximately €150,000 to each parent, in line with the standard tables, reasoning that there was "serious suffering and a strong emotional bond."
The amount would be lower in cases of early pregnancy loss.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
