2alive’ rule is now unassailable in England”
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.”
The inertia of the common law is well illustrated by Lord Macmillan’s
Read v. J. Lyons and Co. Ltd.
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
Ian Kennedy & Andrew Grubb,
ed. (London: 2000), 1487.
Sir John Smith and Brian Hogan,
ed. (London: 1996), 49.