Born alive rule

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The born alive rule is a

Law Lords confirmed that the rule applied in English law but that alternative charges existed in lieu, such as a charge of unlawful or negligent manslaughter instead of murder.[1]

History

The born alive rule was originally a principle at

Institutes of the Laws of England. Coke says: "If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is great misprision, and no murder; but if he childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.[2][3]

The term "reasonable creature" echoes the language of an influential strand Catholic doctrine on the nature of the soul and the

William Staunford
had explained "the thing killed must be in part of the world of physical beings (in rerum natura). This has been interpreted as meaning completely expelled from the womb.[5] Finally, the "thing killed" must be in the King's peace, i.e. in a situation where the protection of the King's peace applied. An outlaw, for instance, was not in the King's peace, and not subject to protection of the law.

The designation "misprision, and no murder", can be traced to the

Venerable Bede.[6]

The personhood status of the fetus once born is a matter of speculation, as children had little recognition at law prior to the

Offences against the Person Act 1828, and today are still not considered full persons until they reach the age of majority and are deemed capable of entering into legally binding contracts.[7] As the Eliza Armstrong case
shows, however, it was still legal for a father to sell his child as late as 1885, long after the slave trade had been abolished in England.

In the nineteenth century, some began to argue for legal recognition of the moment of conception as the beginning of a human being, basing their argument on growing awareness of the processes of

fetal development.[8]
They succeeded in drafting laws which criminalized abortion in all forms and made it punishable in secular courts.

Current state of the law

Advances in the state of the art in medical science, including medical knowledge related to the viability of the fetus, and the ease with which the fetus can be observed in the womb as a living being, treated clinically as a human being, and (by certain stages) demonstrate neural and other processes considered as human, have led a number of jurisdictions – in particular in the United States – to supplant or abolish this common law principle.[8]

Examples of the evidence cited can be found within studies in

Neonatal perception suggest that the physiology required for consciousness does not exist prior to the 28th week, as this is when the thalamic afferents begin to enter the cerebral cortex. How long it takes for the requisite connection to be properly established is unknown at this time. Additionally, it is unclear whether the presence of certain hormones may keep the fetal brain sedated until birth.[9]

United Kingdom

The rule forms the foundation of

premature birth.[10] It was also applied where manslaughter through a midwife's gross negligence caused a child to die before its complete birth.[11]

In Attorney General's Reference No. 3 of 1994 where a husband stabbed his pregnant wife, causing premature birth, and the baby died due to that premature birth, in English law no murder took place. "Until she had been born alive and acquired a separate existence she could not be the victim of homicide". The requirement for murder under English law, involving transfer of malice to a fetus, and then (notionally) from a fetus to the born child with legal personality, who died as a child at a later time despite never having suffered harm as a child with legal personality, nor even as a fetus having suffered any fatal wound (the injury sustained as a fetus was not a contributory cause), nor having malice deliberately directed at it, was described as legally "too far" to support a murder charge.[1] They noted that English law allowed for alternative remedies in some cases, specifically those based on "unlawful act" and "gross negligence" manslaughter and other offenses which do not require intent to harm the victim (manslaughter in English law is capable of a sentence up to and including life imprisonment): "Lord Hope has, however, ... [directed]... attention to the foreseeability on the part of the accused that his act would create a risk ... All that it [sic] is needed, once causation is established, is an act creating a risk to anyone; and such a risk is obviously established in the case of any violent assault ... The unlawful and dangerous act of B changed the maternal environment of the foetus in such a way that when born the child died when she would otherwise have lived. The requirements of causation and death were thus satisfied, and the four attributes of 'unlawful act' manslaughter were complete."[1]

In the same ruling,

trespass to the person when a hospital terminated a pregnancy involuntarily because the mother was diagnosed with severe pre-eclampsia. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent to treatment, whether her own life or that of her unborn child depends on it.[citation needed
]

United States

Fetal homicide
laws in the United States:
  "Homicide" or "murder"
  Other crime against fetus
  Depends on age of fetus
  Assaulting mother
  No law on feticide
Main article: Born alive laws in the United States

The abolition of the rule has proceeded piecemeal, from case to case and from statute to statute, rather than wholesale. One such landmark case with respect to the rule was Commonwealth vs. Cass, in the

Commonwealth of Massachusetts, where the court held that the stillbirth of an eight-month-old fetus, whose mother had been injured by a motorist, constituted vehicular homicide. By a majority decision, the Supreme Court of Massachusetts held that a viable fetus constituted a "person" for the purposes of vehicular homicide law. In the opinion of the justices, "We think that the better rule is that infliction of perinatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide."[13]

Several courts have held that it is not their function to revise statute law by abolishing the born alive rule, and have stated that such changes in the law should come from the

California Supreme Court dismissed a murder indictment against a man who had caused the stillbirth of the child of his estranged pregnant wife, stating that "the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings ... Whether to extend liability for murder in California is a determination solely within the province of the Legislature."[13][14] Several legislatures have, as a consequence, revised their statutes to explicitly include deaths and injuries to fetuses in utero. The general policy has been that an attacker who causes the stillbirth of a fetus should be punished for the destruction of that fetus in the same way as an attacker who attacks a person and causes their death. Some legislatures have simply expanded their existing offences to explicitly include fetuses in utero. Others have created wholly new, and separate, offences.[13]

See also

References

  1. ^ a b c d e f Attorney General's Reference No 3 of 1994 Attorney General's Reference No 3 of 1994 [1997] UKHL 31, [1998] 1 Cr App Rep 91, [1997] 3 All ER 936, [1997] 3 WLR 421, [1997] Crim LR 829, [1998] AC 245 (24 July 1997), House of Lords
  2. ^ Edward Coke, First Part of the Institutes on the Laws of England
  3. ^ Cited in "The New "Fetal Protection": The Wrong Answer to the Crisis of Inadequate Health Care for Women and Children" Archived 2011-07-20 at the Wayback Machine, Linda Fentiman, 2006, note 119, (abstract and download link)
  4. ^ [1] On the Generation of Animals, book II
  5. ^ [2] Bouvier's Law Dictionary, Murder
  6. ^ Spivack, Carla, To Bring Down the Flowers: The Cultural Context of Abortion Law in Early Modern England. Available at SSRN: [3]
  7. ^ "Person". Archived from the original on 2010-09-23. Retrieved 2010-09-30.
  8. ^
    ISBN 0-7546-4412-X
    .
  9. S2CID 9833426
    .
  10. ^ R v West (1848) 175 ER 329
  11. ^ R v Senior (1832) 1 Mood CC 346
  12. ^ [1998] 3 All ER
  13. ^
    ISBN 0-19-826468-2
    .
  14. ISBN 0-8342-1083-5
    .

Further reading
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