Born alive rule

The born alive rule was originally a principle at common law 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. 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. The term "reasonable creature" echoes the language of an influential strand of Catholic doctrine on the nature of the soul and the beginning of human personhood which Aristotle generally adopted 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. 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 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. Penalties for abortion varied depending on whether the fetus was formed or unformed, that is before or after quickening, and were only imposed on women who had aborted the product of "fornication" (illicit sex), a distinction previously 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 legal recognition of the moment of conception as the beginning of a human being, basing their argument on growing awareness of the processes of pregnancy and fetal development. 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. United Kingdom The rule forms the foundation of UK law related to the fetus. In the case ''Attorney General's Reference No. 3 of 1994'' Lord Mustill noted that the legal position of the unborn, and other pertinent rules related to transferred malice, were very strongly embedded in the structure of the law and had been considered relatively recently by the courts. It was also applied where manslaughter through a midwife's gross negligence caused a child to die before its complete birth. 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. it was held a 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. United States 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." 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 "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." 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. ==See also==