Defining the Legal Status of the Unborn

Some Progress Made in Past Months

PARIS, DEC. 6, 2003 ( Parliaments and courts in several countries continue to give deliberate over what legal status unborn children may possess. The most recent case comes from France, where the lower house of Parliament approved an amendment to a bill that would make it a crime to cause a pregnant woman to miscarry against her will, the British daily Guardian reported Nov. 29.

The proposal is still to be considered by the Senate, where press reports say it faces an uphill battle. The proposal arose after a court case involving a woman who had lost her baby after being hit by a car. An attempt to convict the offending driver failed, with the court determining that the fetus was not recognized as a person under French law.

Earlier this year a similar law was recommended for the Australian state of New South Wales, according to the Sydney Morning Herald, June 26. The proposal came from retired Supreme Court Judge Mervyn Finlay, in a review of the state’s manslaughter legislation. As in France the cause originates in the case of a mother who lost her unborn baby in a car accident.

Current state law does not classify a child as human until he or she draws breath. All Australian states other than New South Wales and South Australia have legislation making the killing of an unborn child an offense, with penalties ranging from 10 years in jail to a life sentence.

In his report, Finlay found that “the status of the fetus capable of being born alive is not merely that of a body part of its mother” and he recommended the introduction of the offence of “killing an unborn child.” He proposed that for legal purposes a fetus be considered a child at 26 weeks. Finlay also suggested that the death of a fetus due to a criminal act at earlier than 26 weeks be considered an aggravating factor at sentencing.

In the United States, legislators have also debated the introduction of laws giving some form of legal status to unborn children. Pennsylvania and Texas have considered the issue in past months. U.S. Senator Rick Santorum of Pennsylvania wrote on the issue in an opinion article for the Philadelphia Inquirer last June 8. Commenting on the discovery in San Francisco Bay of the body of Laci Peterson, who was carrying her unborn child, Santorum noted that California law recognizes that the homicide of an expectant mother has two victims.

With the approval in Pennsylvania of a similar law, there are now 26 states that consider the harming an unborn child as a crime. Santorum lamented that this still leaves nearly half of the United States without such protection. “As lawmakers, we have a duty to make justice available where gaps and loopholes in the law exist for innocent victims who have suffered maliciously intended harm,” he said.

Florida battle

Courts have also been active in the legal debate over unborn children. Florida was the center of a battle earlier this year as Governor Jeb Bush intervened to ask that a guardian be appointed for the fetus of a mentally retarded woman. After a protracted battle Judge Lawrence Kirkwood approved that the woman, known as J.D.S., complete her pregnancy, the Sun-Sentinel reported June 26.

On several occasions the judge had ruled against the petitions of Bush to appoint a guardian for the fetus. However, the judge did finally accept the medical plan recommended by J.D.S.’ court-appointed guardian, Patti Jarrell. The plan proposed the woman continue with her pregnancy. J.D.S. became pregnant after being assaulted while in the medical facility where she is cared for.

The decision came a month after a similar case led to the woman in question undergoing an abortion. Judge Arthur Rothenburg authorized the abortion for the mentally handicapped woman, and he also gave permission for doctors to sterilize the woman, the Associated Press reported May 23.

Courts have also handed down a number of decisions concerning convictions made under laws recognizing the legal status of unborn children. The U.S. Supreme Court rejected an appeal by a South Carolina woman convicted of homicide for causing her baby to be stillborn due to her use of cocaine, Reuters reported Oct. 6.

The court refused to review an appeal by Regina McKnight who had challenged the constitutionality of the law. McKnight gave birth in 1999 to a stillborn, 5-pound baby girl after a pregnancy estimated at between 34 and 37 weeks. She tested positive for cocaine, and an autopsy of the baby revealed traces of cocaine. Prosecutors said McKnight had been responsible for her daughter’s death because she used crack cocaine even though she knew it could kill her fetus.

A South Carolina law makes it a crime to cause the death of a child under the age of 11 while committing abuse or neglect if the death occurs under circumstances manifesting “an extreme indifference to human life.”

Another conviction for causing the death of an unborn child came in Massachusetts. Roberto Madruga was sentenced to two years jail after pleading guilty to being drunk when his pickup truck collided with a car, injuring a female passenger and causing her to lose her fetus, the Associated Press reported Tuesday.

Earlier, the Mississippi Supreme Court ruled that an unborn fetus is a person under state law, the AP reported Aug. 22. By a 6-2 vote the court ruled in favor of a woman’s right to pursue a wrongful death claim, after she said that a mistake by her doctors caused her to suffer emotional distress and have a miscarriage. The fetus being carried by Tracy Tucker was 19 weeks old at the time.

Previously, the law allowed people to sue for the wrongful death of a newly born, or prematurely born, fetus that would have been expected to live. With this decision the court extended the right to file a lawsuit under the wrongful death statute to cover non-viable fetuses.

The case dates back to 2001, when a county judge declined to dismiss Tucker’s lawsuit and allowed all parties to ask the Supreme Court to decide whether the wrongful death claim was legal.

Focus on the fetus

Medical experts are also paying greater attention to the fetus. Earlier this year one of Britain’s leading neurological scientists said that fetuses might develop consciousness long before the legal age limit for abortions. Baroness Greenfield, a professor of neurology at Oxford University and the director of the Royal Institution, said there was evidence to suggest the conscious mind could develop before 24 weeks, the upper age where abortions are permitted in Britain, the daily Telegraph reported March 10.

“Given that we can’t prove consciousness or not, we should be very cautious about being too gung-ho and assuming something is not conscious,” she said. “We should err on the side of caution.”

Greenfield also noted that the British Home Office has extended legislation that originally gave legal protection to mammals, to include an octopus and even a mollusk. “If a mollusk can be attributed with being sentient, and now has Home Office protection, then my own view is that we should be very cautious on making assumptions,” she said.

In his address May 22 to members of the Italian pro-life movement John Paul II stated: “There can be no true peace without respect for life, especially if it is innocent and defenseless as is that of the unborn child.”

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