Provided by the author(s) and University College Dublin Library in accordance with publisher policies. Please cite the published version when available. Title Born alive: the legal status of the unborn child in England and the U.S.A. Authors(s) Casey, Gerard Publication date 2005-05 Publisher Barry Rose Law Publishers Link to online version http://www.amazon.com/Born-Alive-Status-England-U-S/dp/1902681460 Item record/more information http://hdl.handle.net/10197/5546 Downloaded 2021-10-02T19:33:50Z The UCD community has made this article openly available. Please share how this access benefits you. Your story matters! (@ucd_oa) © Some rights reserved. For more information, please see the item record link above. Born Alive: The Legal Status of the Unborn Child in England and the U.S.A. NB This is the complete text of the published version, less the front material. However, the pagination differs from that of the book. INTRODUCTION On a charge of murder or manslaughter it must be shown that the person killed was one who was in being. It is neither murder nor manslaughter to kill an unborn child while still in its mother’s womb although it may be the statutory offences of child destruction or abortion. If however the child is born alive and afterwards dies by reason of an unlawful act done to it in the mother’s womb or in the process of birth, the person who committed that act is guilty of murder or manslaughter according to the intent with which the act is done. [Halsbury’s th LAWS OF ENGLAND , 4 ed. reissue, Vol. 11 (1). London: Butterworths, 1990.] The Born Alive rule is a rule of the common law which holds that a person cannot be held responsible for injuries inflicted on a foetus in utero unless and until it is born alive. While there was some initial indecision about how the common law would regard the killing or injury of the foetus in utero , the Born Alive rule was established at a relatively early stage in its history. It has since become entrenched, particularly in English law, so much so that Kennedy & Grubb feel justified in saying that “the ‘born alive’ rule is now unassailable in England” 1 However, in the U.S.A., the rule has been abrogated in many circumstances; first, in civil law and, more recently, in the area of criminal law. The conservatism of the Common Law is notorious. Once a rule is established, there are only two ways to escape its reach. The first way is via the blunt instrument of statute, a remedy not without its own dangers but having its uses as a sword to cut through Gordian knots; the second way to escape the reach of an established rule is by distinguishing it to death. The status of the Born Alive rule in England is such that there is at present no movement to circumvent it by the making of distinctions and the whole thrust of legislation has been in the opposite direction to what is required by the revelations of medical science. Nevertheless, the circumstances in which the Born Alive rule came to be and to operate no longer obtain so that it is unreasonable for the law to resist its disestablishment. To the extent that the Born Alive rule was ever justified, that justification depends on a fiction, that of denying the essential humanity of the foetus, and “criminal liability [or lack thereof] should not turn on fictions.” 2 The inertia of the common law is well illustrated by Lord Macmillan’s obiter dictum in Read v. J. Lyons and Co. Ltd. 3 when he said to his fellow Law Lords: “Your Lordships are not called upon to rationalize the law of England. That attractive if perilous field may well be left to other hands to cultivate. It has been necessary in the present instance to examine certain general principles advanced on behalf of the appellant because it was said that consistency required that these principles should be applied to the case in hand. Arguments based on legal consistency are apt to mislead 1 Ian Kennedy & Andrew Grubb, Medical Law 3 rd ed. (London: 2000), 1487. 2 Sir John Smith and Brian Hogan, Criminal Law 8 th ed. (London: 1996), 49. 2 for the common law is a practical code adapted to deal with the manifold diversities of human life and as a great American judge [Oliver Wendell Holmes] has reminded us ‘the life of the law has not been logic; it has been experience’. However, it was Oliver Wendell Holmes who also said: “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” The Born Alive rule is a classic example of a rule whose raison d’etre has long since disappeared; it is time to give its corpse a decent burial. 3 [1947] A.C. 156, 175. For some very interesting examples of Common Law rules that have persisted for no apparent reason beyond that of mere antiquity see Carleton K. Allen, The Making of Law 7 th ed. (Oxford, 1964), 327ff. 3 1 HISTORICAL BACKGROUND From the Hittites to the Romans In ancient cultures and civilisations the legal status of the child normally comes to be considered in the context of abortion or infanticide or in the context of assaults on pregnant women. The Hittites, Assyrians, Babylonians, Greeks, Romans and various post-Roman barbarian kingdoms have all of them reflected on the issues involved. 1 The rank of the perpetrator of the assault, the rank of the victim, and the state of embryological development of the child are all factors that play a role in determining the seriousness of the offence. Discussing the Babylonian laws relating to assaults on pregnant women G. Driver & J. Miles note that the laws of the Hittites varied the penalty according to the rank of the victim and the state of development of the unborn child. They add “a trace of the Hittite rule is to be found in the translation of the Septuagint where the penalty varies according as the embryo is not yet or is ‘fully formed’…being in the first case a fine and in the second a life for a life. There does not seem to be any borrowing by any one from any other of these laws…”. 2 Jewish law was based on the following passage from Exodus : “And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow—he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow—then thou 1 “The current abortion debate in many countries is not a new or unique historical phenomenon,” writes Nora Gallagher in her thesis A Comparative Analysis on the Right to Abortion and its Application in Europe (LLM thesis, University College Dublin, 1996), 3. shalt give life for life.” [ Exodus 21:22-23] There is a divergence in the interpretation of this passage according as one reads the ‘harm’ in ‘…any harm follow’ as attaching to the foetus or to the woman. Menachem Elon believes that the harm attached to the foetus and not the mother. The Septuagint, however, distinguished between the abortion of an incomplete foetus and the abortion of one that was complete; a fine was attached to the abortion of the incomplete foetus, while the penalty for the killing of a complete foetus was a life for a life. On the other hand “The talmudic scholars, however, maintained that the word ‘harm’ refers to the woman and not to the foetus…. Similarly, Josephus states that a person who causes the abortion of a woman’s foetus as a result of kicking her shall pay a fine for ‘diminishing the population,’ in addition to paying monetary compensation to the husband…” 3 Among the Greeks, the Hippocratic Oath famously forbade abortion [“I will not give to a woman an abortive remedy.” 4] but it is not known how widely representative this attitude was among other Greek physicians or among physicians elsewhere. Plato, notoriously, through the mouth of Socrates in the Republic , appears to recommend infanticide for eugenic reasons: “…the offspring of the former [the best men and women] must be reared, but not the offspring of the latter [inferior men and women]….the children of inferior parents, or any child of the others born defective, they will hide…in a secret and unknown place.” 5 In his translation of the Republic , G. M. A. Grube is in no doubt that “Plato is here recommending infanticide by exposure 2 G. R. Driver & John C. Miles (ed. trans. and commentary), The Babylonian Laws Vol. 1, (Oxford, 1952), 415-16 3 Menachem Elon ed ., The Principles of Jewish Law (Jerusalem, 1975), 482. In his classic and pioneering work in sociology, William Graham Sumner, citing Exod. xxi, 7, notes that while “Jews abominated infanticide” they might sell their children to other Jews. William Graham Sumner, Folkways (New York, 1906), 313. 4 Translation from the Greek by Ludwig Edelstein. From The Hippocratic Oath: Text, Translation, and Interpretation , by Ludwig Edelstein (Baltimore, 1943). 5 Plato, Republic , 459e, 460c. 5 for these babies, a practice which was quite common even in classical times.” 6 It may be that Plato is indeed recommending infanticide (though this has been doubted 7) but even if so it must not be forgotten that Plato’s surviving writings are dramatic dialogues in which various figures take various positions and it may well be as mistaken to attribute to Plato the opinions of a character in one of his dialogues as it is to attribute to a playwright opinions expressed by a character in his play.