Born alive rule
Encyclopedia
The "born alive" rule is a legal principle that holds that various aspects of the criminal law, such as the statutes relating to homicide
and to assault, apply only to a child that is "born alive
". American courts have overturned this rule, citing recent advances in science and medicine; and in several jurisdictions feticide
statutes have been explicitly framed or amended to include fetus
es in utero
. Abortion in Canada
is still governed by the born alive rule, as courts continue to hold to its foundational principles.
in England that was carried to the United States and other former colonies of the British Empire. First formulated by William Staunford
, it was later set down by Edward Coke
in his Institutes of the Laws of England. It follows the language used in cases of Murder in English law
, identifying three salient characteristics.
1. a reasonable creature,
2. in rerum natura (in natural being); and
3. in the King's peace.
Coke tells us rule:
The term "reasonable creature" echoes the language of an influential strand Catholic doctrine on the nature of the soul and the Beginning of human personhood
which generally adopted Aristotle in holding that it is the "rational soul" that infuses the fetus with "human beingness". There was disagreement as to whether this occurred at the moment of conception, or at the moment of quickening
, as Aristotle had held.
As for rerum natura, 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.
Finally, the "thing killed" must be in the King's peace, i.e. a loyal subject of the monarch. 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 "Leges Henrici Primi
" of 1115, which designated abortion "quasi homicide". Here, we find the penalties for abortion were varying lengths of penance, indicating it was dealt with by ecclesiastical courts, while homicide, being a breach of the King's peace, was dealt with in secular courts. Further, penalties for abortion varied depending on whether the fetus was formed or unformed, that is before or after quickening
. More importantly, penalties were only imposed on women who had aborted the product of "fornication" (illicit sex), a distinction which had previously been made by the Venerable Bede.
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. 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 a recognition of the moment of conception as the beginning of a human being, basing their argument on more complete knowledge of the fertilization process. They succeeded in drafting laws which criminalized abortion in all forms and made it punishable in secular courts.
More recent advances allow us a better understanding of when a fetus becomes a "reasonable creature" and whether it has independence of being in rerum natura in the womb. Additionally, illicit sex, with the exception of prostitution, is no longer a crime in England and the common law countries.
, fetal heart monitoring, and fetoscopy
, have since made it possible to determine that a child is alive within the womb, and as a consequence many jurisdictions, in particular in the United States, have taken steps to supplant or abolish this common law principle.
Advances in Behavioral neuroscience
address the question of the "reasonableness" of the creature in the womb. It is generally believed that a functioning cerebral cortex is required for consciousness and for the processing of abstract thought or Reason
. 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, the presence of certain hormones may keep the fetal brain sedated until birth.
As of 2002, 23 states in the United States still employed the rule, to lesser or greater extent.
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 the fetus constituted a "person" for the purposes of the Massachusetts statute relating to vehicular homicide. In the opinion of the justices,
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 legislature
. In 1970 in Keeler v. Superior Court of Amador County, 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,
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.
For examples:
Homicide
Homicide refers to the act of a human killing another human. Murder, for example, is a type of homicide. It can also describe a person who has committed such an act, though this use is rare in modern English...
and to assault, apply only to a child that is "born alive
Live birth
In human reproduction, a live birth occurs when a fetus, whatever its gestational age, exits the maternal body and subsequently shows any sign of life, such as voluntary movement, heartbeat, or pulsation of the umbilical cord, for however brief a time and regardless of whether the umbilical cord or...
". American courts have overturned this rule, citing recent advances in science and medicine; and in several jurisdictions feticide
Feticide
Feticide is an act that causes the death of a fetus. In a legal context, "fetal homicide" or "child destruction" refers to the deliberate or incidental killing of a fetus due to a criminal human act, such as a blow to the abdomen of a pregnant woman...
statutes have been explicitly framed or amended to include fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
es in utero
In utero
In utero is a Latin term literally meaning "in the womb". In biology, the phrase describes the state of an embryo or fetus. In legal contexts, the phrase is used to refer to unborn children. Under common law, unborn children are still considered to exist for property transfer purposes.-See also:*...
. Abortion in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
is still governed by the born alive rule, as courts continue to hold to its foundational principles.
History
The born alive rule was originally a principle at common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
in England that was carried to the United States and other former colonies of the British Empire. First formulated by William Staunford
William Staunford
Sir William Staunford was an English jurist and was appointed a judge of the Court of Common Pleas in 1554.In 1557 Staunford published the first textbook of English criminal law; Les Plees del Coron. In 1561 his An Exposicion of the Kinges Prerogative was published...
, it was later set down by Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
in his Institutes of the Laws of England. It follows the language used in cases of Murder in English law
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
, identifying three salient characteristics.
1. a reasonable creature,
2. in rerum natura (in natural being); and
3. in the King's peace.
Coke tells us rule:
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.
The term "reasonable creature" echoes the language of an influential strand Catholic doctrine on the nature of the soul and the Beginning of human personhood
Beginning of human personhood
The beginning of human personhood is the period in an individual's life when he or she is recognized, or begins to be recognized, as a person. The precise timing and nature of this occurrence is not universally agreed upon, and has been the subject of discussion and debate in science, religion and...
which generally adopted Aristotle in holding that it is the "rational soul" that infuses the fetus with "human beingness". There was disagreement as to whether this occurred at the moment of conception, or at the moment of quickening
Quickening
Quickening is the earliest perception of fetal movement by a mother during pregnancy Quickening may also refer to:* Quickening , Final Fantasy XIIs incarnation of "Limit Breaks"...
, as Aristotle had held.
As for rerum natura, William Staunford
William Staunford
Sir William Staunford was an English jurist and was appointed a judge of the Court of Common Pleas in 1554.In 1557 Staunford published the first textbook of English criminal law; Les Plees del Coron. In 1561 his An Exposicion of the Kinges Prerogative was published...
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.
Finally, the "thing killed" must be in the King's peace, i.e. a loyal subject of the monarch. 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 "Leges Henrici Primi
Leges Henrici Primi
The Leges Henrici Primi or Laws of Henry I is a legal treatise, written in about 1115, that records the legal customs of medieval England in the reign of King Henry I of England. Although it is not an official document, it was written by someone apparently associated with the royal administration...
" of 1115, which designated abortion "quasi homicide". Here, we find the penalties for abortion were varying lengths of penance, indicating it was dealt with by ecclesiastical courts, while homicide, being a breach of the King's peace, was dealt with in secular courts. Further, penalties for abortion varied depending on whether the fetus was formed or unformed, that is before or after quickening
Quickening
Quickening is the earliest perception of fetal movement by a mother during pregnancy Quickening may also refer to:* Quickening , Final Fantasy XIIs incarnation of "Limit Breaks"...
. More importantly, penalties were only imposed on women who had aborted the product of "fornication" (illicit sex), a distinction which had previously been made by the Venerable Bede.
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
Offences Against the Person Act 1828
The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
, 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. As the Eliza Armstrong case
Eliza Armstrong case
The Eliza Armstrong case was a major scandal in the United Kingdom involving a child supposedly bought for prostitution for the purpose of exposing the evils of white slavery...
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 a recognition of the moment of conception as the beginning of a human being, basing their argument on more complete knowledge of the fertilization process. They succeeded in drafting laws which criminalized abortion in all forms and made it punishable in secular courts.
More recent advances allow us a better understanding of when a fetus becomes a "reasonable creature" and whether it has independence of being in rerum natura in the womb. Additionally, illicit sex, with the exception of prostitution, is no longer a crime in England and the common law countries.
Today
However, advances in the state of the art in medical science, including ultrasonographyMedical ultrasonography
Diagnostic sonography is an ultrasound-based diagnostic imaging technique used for visualizing subcutaneous body structures including tendons, muscles, joints, vessels and internal organs for possible pathology or lesions...
, fetal heart monitoring, and fetoscopy
Fetoscopy
Fetoscopy is an endoscopic procedure during pregnancy to allow access to the fetus, the amniotic cavity, the umbilical cord, and the fetal side of the placenta. A small incision is made in the abdomen, and an endoscope is inserted through the abdominal wall and uterus into the amniotic cavity...
, have since made it possible to determine that a child is alive within the womb, and as a consequence many jurisdictions, in particular in the United States, have taken steps to supplant or abolish this common law principle.
Advances in Behavioral neuroscience
Behavioral neuroscience
Behavioral neuroscience, also known as biological psychology, biopsychology, or psychobiology is the application of the principles of biology , to the study of physiological, genetic, and developmental mechanisms of behavior in human and non-human animals...
address the question of the "reasonableness" of the creature in the womb. It is generally believed that a functioning cerebral cortex is required for consciousness and for the processing of abstract thought or Reason
Reason
Reason is a term that refers to the capacity human beings have to make sense of things, to establish and verify facts, and to change or justify practices, institutions, and beliefs. It is closely associated with such characteristically human activities as philosophy, science, language, ...
. 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, the presence of certain hormones may keep the fetal brain sedated until birth.
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
Vehicular homicide
Vehicular homicide in most states in the United States, is a crime. In general, it involves death that results from the negligent operation of a vehicle, or more so a result from driving while committing an unlawful act that does not amount to a felony...
. By a majority decision, the Supreme Court of Massachusetts held that the fetus constituted a "person" for the purposes of the Massachusetts statute relating to vehicular homicide. In the opinion of the justices,
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 legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
. In 1970 in Keeler v. Superior Court of Amador County, 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,
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.
For examples:
- In MinnesotaMinnesotaMinnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, for example, vehicular homicide, death to an unborn child, and injury to an unborn child are three separate offences, under the umbrella of criminal vehicular operation. - In CaliforniaCaliforniaCalifornia is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, §187 of the California Penal Code was amended to redefine murder to include the unlawful killing of a fetus, albeit that "fetus" was not defined. A landmark case in this instance that clarified this point was People v. Smith, in which the court held that the notion of viability incorporated the capability for independent existence, and that until that capability is attained by a fetus "there is only the expectancy and potentiality for human life". The court held homicide to be the destruction of a human life, and required proof that this had in fact occurred. Thus it was held that the defendant was guilty of abortion, not homicide.
See also
- Born-Alive Infants Protection ActBorn-Alive Infants Protection ActThe Born-Alive Infants Protection Act of 2002 is an Act of Congress. It extends legal protection to an infant born alive after a failed attempt at induced abortion. It was signed by President George W...
- Unborn Victims of Violence ActUnborn Victims of Violence ActThe Unborn Victims of Violence Act of 2004 is a United States law which recognizes a "child in utero" as a legal victim, if he or she is injured or killed during the commission of any of over 60 listed federal crimes of violence...
- Fetal rightsFetal rightsFetal rights is a term used in some countries in reference to legislation that grants legal rights to fetuses. The term is used most often in the context of the abortion debate, as the basis for an argument in support of the pro-life stance....