The death of the foetus must also be compensated for the loss of the parental relationship

The death of a foetus due to medical liability causes the parents damages for loss of parental relationship. This was decided by the Court of Cassation (third civil section, order 26826/2025 filed on Monday 6 October) on the case of a young woman, who reached the 41st week of pregnancy and was hospitalised with clear signs of foetal suffering.

Despite the clinical evidence and repeated requests for intervention, the doctors had refrained from timely a caesarean section, performing it only the following morning. The foetus was by then deadly born due to severe perinatal asphyxia. At first instance, since the foetus had been stillborn, the parents had been awarded the minimum envisaged by the Tables of Milan: 165,000 euros each, an amount later halved on appeal, where the loss had been qualified as only a potential affective relationship.

According to the Court of Cassation, the parental relationship is born already during gestation and is progressively consolidated, so that the death of the foetus due to the negligent conduct of the doctors damages a real and current affective relationship, rooted in the inner suffering of the parents and in their future daily life. The Court recalls its own ordinance 26301/2021 and reiterates that the damage must be qualified in its twofold dimension: on the one hand subjective moral suffering (pain and inner laceration), on the other hand the dynamic-relational damage (alteration of habits and life paths). Automatically halving the tabular values merely because the foetus was not born alive is therefore wrong. And it contravenes the constitutional principles of the protection of motherhood and life (Articles 2, 29, 30 and 31) and Article 8 of the ECHR, which protects family life.

The Supreme Court confirms that the Milan Tables are the binding parameter for all judges of merit, as a form of "equal equity" to ensure uniformity of treatment and predictability of decisions. The judge may deviate from them only with express reasons and adequate to the peculiarities of the concrete case. Thus, in the judgement of referral, the Court of Appeal must recalculate the compensation by fully applying its values and personalising the liquidation on the basis of the particular suffering of the parents. The principle of law affirmed by the Supreme Court also states that suffering for the loss of a child, even an unborn child, is fully compensable parental damage, since the parental bond is rooted well before birth.

With this decision, the Court of Cassation restores centrality to the affective dimension of parenthood, reaffirming the human value of the conceived child and recognising the parents' right to full equitable relief in accordance with the uniform criteria of the Milan Tables.