Born alive laws in the United States

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: "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."[1]

The phrase "a reasonable creature, in rerum natura" as a whole is usually translated as "a life in being", i.e. where the umbilical cord has been severed and the baby has a life independently of the mother.[2] "Reasonable" here is used as in the 16th century, meaning "something that may reasonably be considered [a living creature]". In English law this meant that until born, the fetus was not accounted a person under criminal law, nor a separate person from its mother, and could not have the capacity to be the subject of an actus reus ('wrongful act') – a prerequisite for a criminal offense in the absence of any statute to the contrary.

In the 19th 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.[3][4] They succeeded in drafting laws which criminalized abortion in all forms and made it punishable in secular courts. 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.[3]

Changes to the law proceed 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."[5]

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."[6]

Several legislatures passed laws 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.[5]

§187 of the California Penal Code was amended to redefine murder to include the unlawful killing of a fetus. The term "fetus" was not initially defined.

In People v. Smith (1976)[9] the court qualified this as signifying a viable fetus, holding that until the capability for independent existence is attained by a fetus "there is only the expectancy and potentiality for human life". They reasoned that the U.S. Supreme Court had implicitly stated in various cases dealing with abortion, that destruction of a nonviable fetus did not constitute taking a human life. As homicide was the unlawful destruction of a human life, proof was required that the unlawful destruction of a human life had in fact occurred. Thus it was held that the defendant was guilty of abortion, but not homicide.[5]

In People v. Davis (1994), the California Supreme Court examined this and concluded fetal viability was not essential for rights to exist. They reasoned that abortion cases such as Wade v. Roe discuss where to draw the line for legitimate state interest in situations where the interests of fetus and mother conflict. Such cases do not discuss, and do not preclude, a legitimate state interest in protecting the potentiality of human life perhaps arising at a different time in situations where the rights of the fetus do not have to be set against the rights of the mother.

Vehicular homicide, death to an unborn child, and injury to an unborn child are three separate offences, under the umbrella of criminal vehicular operation.[10]