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Born Alive: The Legal Status of the Unborn Child in the USA and the UK

Born Alive: The Legal Status of the Unborn Child in the USA and the UK

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Published by: gerard.casey2051 on Apr 25, 2011
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Born Alive: The Legal Status of the UnbornChild in England and the U.S.A.
NB This is the complete text of the published version, less the frontmaterial. However, the pagination differs from that of the book.
I
NTRODUCTION
 
On a charge of murder or manslaughter it must be shown that the person killedwas one who was in being. It is neither murder nor manslaughter to kill anunborn child while still in its mother’s womb although it may be the statutoryoffences of child destruction or abortion. If however the child is
born alive
andafterwards dies by reason of an unlawful act done to it in the mother’s womb orin the process of birth, the person who committed that act is guilty of murder ormanslaughter according to the intent with which the act is done. [Halsbury’s
 L
 AWS OF 
 E 
 NGLAND
, 4
th
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 beheld responsible for injuries inflicted on a foetus
in utero
unless and until it is bornalive. While there was some initial indecision about how the common law wouldregard the killing or injury of the foetus
in utero
, the Born Alive rule was establishedat a relatively early stage in its history. It has since become entrenched, particularly inEnglish law, so much so that Kennedy & Grubb feel justified in saying that “the ‘born
 
2alive’ rule is now unassailable in England”
1
However, in the U.S.A., the rule has beenabrogated 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 instrumentof statute, a remedy not without its own dangers but having its uses as a sword to cutthrough Gordian knots; the second way to escape the reach of an established rule isby distinguishing it to death.The status of the Born Alive rule in England is such that there is at present nomovement 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 cameto be and to operate no longer obtain so that it is unreasonable for the law to resist itsdisestablishment. 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: “YourLordships 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 thepresent instance to examine certain general principles advanced on behalf of theappellant because it was said that consistency required that these principles should beapplied 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.
 
3for the common law is a practical code adapted to deal with the manifold diversitiesof human life and as a great American judge [Oliver Wendell Holmes] has remindedus ‘the life of the law has not been logic; it has been experience’. However, it wasOliver Wendell Holmes who also said: “It is revolting to have no better reason for arule of law than that it was laid down in the time of Henry IV. It is still more revoltingif the grounds upon which it was laid down have vanished long since and the rulesimply persists from blind imitation of the past.” The Born Alive rule is a classicexample of a rule whose raison d’etre has long since disappeared; it is time to give itscorpse a decent burial.
 
3
[1947] A.C. 156, 175. For some very interesting examples of Common Law rules that have persistedfor no apparent reason beyond that of mere antiquity see Carleton K. Allen,
The Making of Law
7
th
ed.(Oxford, 1964), 327ff.

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