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It is in the public's interest to make it a separate crime to kill an unborn baby, because sometimes the baby dies and the mother lives. In the event that they both die, some states would have considered that to be a double homicide, and others it would not. The loss of unborn baby is still considered murder of a human being in at least 38 of the 51 United States. This is owed to The Unborn Victims of Violence Act of 2004, Public Law 108-212 states this claim of life on a federal level. The statute states, that a "child in utero" is "a member of the species Homo sapiens, at any stage of development, who is carried in the womb" (Congress. , 2012). However, this does not stop individual states from creating their own definitions of crime related to this definition.
The Fetal Homicide statues are slightly different in each state, for example Alabama defines "person," for the purpose of criminal homicide or assaults, to include an unborn child in-utero at any stage of development, regardless of viability and specifies that nothing in the act shall make it a crime to perform or obtain an abortion that is otherwise legal” (Ala. Code § 13A-6-1 ,2006)
The state of Idaho defines “that murder includes the unlawful killing of a human embryo or fetus under certain conditions. The law provides that manslaughter includes the unlawful killing of a human embryo or fetus without malice. The law defines "embryo" or "fetus" as any human in-utero. These laws do not apply to conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law, or to any person for any medical treatment of the pregnant woman or her embryo or fetus” (Idaho Code §18-4001,18-4006 and § 18-4016 , 2002). Furthermore, the state of Washington says “that a person is guilty of manslaughter in the first degree when he or she unlawfully kills an unborn quick child by inflicting injury to the mother of such child” (Wash. Rev. Code Ann. § 9A.32.060) The definition of quick child means the mother has felt movement so approx. 16-20-week gestation. (Hedden,2007)
The standards for discovering such laws follow three definitions of life, the born alive standard, the viability standard and the conception standard. The term conception is a moment in time, in matters of abortion and murder the punishment may be tailored to the gestational age of the unborn child, from conception to quickening and quickening to viability are legal terms for 1st, 2nd and 3rd stages of pregnancy.
The born alive standard meant that the unborn baby would need to have taken living breaths and had separate circulation from its mother before dying for a murder conviction to be placed on a perpetrator. In the Viability definition, a person could be charged with a homicide without having to prove life inside the mother. This type of case might be used in a spousal abuse case were the husband made intentional blows to the stomach of his wife to end the pregnancy. Now, to get on my soapbox for a moment I cannot conceive how the laws on the death of an unborn baby can be so defines and yet so very blurred at the same time. As we all know the case of Row V Wade made it perfectly legal for a pregnant woman to give her doctor permission to murder her child, then because of technicalities the cases in Florida ruled “that the State could not prosecute a teenage woman who shot herself in the stomach during her third trimester. The fetus was removed during surgery and died fifteen days later Thus the woman was shielded from criminal liability even though the fetus was “born alive” (Hedden, 2007) but then at the opposite extreme, the State of Utah charged Melissa Rowland with murder after she delayed accepting the advice of her physician to have a cesarean delivery and one of her twins was later stillborn. She was charged with manslaughter that later ended in child endangerment” (Hedden, 2007). Life is incredibly precious and this topic breaks my heart and fills me with rage, I look forward to the day the Lord avenges the death of millions of incent children.
Hedden, A., (2007 When is the Death of a Fetus Homicide, The Center for Homicide Research retrieved from http://homicidecenter.org/wp-content/uploads/2013/09/When-is-the-Death-of-a-Fetus-a-Homicide.pdf
National Conference of State Legislation (2015) Fetal Homicide Laws, Retrieved from
Public Law 108-212 (2004) Unborn Victims of Violence Act, Authenticated U.S. Government Information. Retrieved from https://www.congress.gov/108/plaws/publ212/PLAW-108publ212.pdf
- It is in the public’s interest as the fetal homicide laws are to prevent and punish the extreme antisocial behavior that is the taking of another’s life for no justifiable cause. (Curran, 2009). This law would hold those accountable who would end the life of a fetus but also would augment the reproductive freedoms guaranteed to women. (Curran, 2009).
- There is not a conflict between fetal homicide laws and abortion rights. Although many may see that there would be an issue because the fetal laws is the protection of pregnant mothers and their unborn children while still maintaining reproductive freedoms. (Curran, 2009) The conflict that many people may see if resolved because legislation without exception have specifically provided that fetal homicide statutes will not obstruct a woman’s right to legal abortion. (Curran, 2009). Some states have exempted the mother of an unborn child from liability all together. These statutes are inapplicable to abortion context and many are inapplicable to any action taken by the mother. (Curran, 2009).
- The “born-alive” standard was the common law principle that dates back to the 1600s, stating that the fetus must be born alive and draw breath before dying of his injuries for the death to be considered a homicide. (Oakley, 2009). The viability standard is a criminal action against a fetus is capable to surviving outside the womb. That period consists of the end of the 2nd trimester, between twenty-four to twenty-eight weeks. (Curran, 2009). The conception standard is a statute that criminalizes actions against fetuses that are twelve weeks or more. (Curran, 2009). It is hard to determine which standard should be used today. Each state decides based on their legislation. It is difficult to decide if a fetus is a human being before being born as it is a living breathing person in the womb. The viability standard makes sense as well, since the fetus would be developed enough to survive at the end of the 2nd trimester. I would not suggest conception standard.
Md. Criminal Law Code Ann. § 2-103 establishes that a prosecution may be instituted for murder or manslaughter of a viable fetus as defined in Md. Health-General Code Ann. § 20-209. A person prosecuted for murder or manslaughter must have intended to cause the death of the viable fetus; intended to cause serious physical injury to the viable fetus; or wantonly or recklessly disregarded the likelihood that the person’s actions would cause the death of or serious physical injury to the viable fetus. (2005 Md. Laws, Chap. 546)
§ 20-209. Intervention; regulations; liability
(a) "Viable" defined. -- In this section, "viable" means that stage when, in the best medical judgment of the attending physician based on the particular facts of the case before the physician, there is a reasonable likelihood of the fetus's sustained survival outside the womb.
(b) State intervention. -- Except as otherwise provided in this subtitle, the State may not interfere with the decision of a woman to terminate a pregnancy:
(1) Before the fetus is viable; or
(2) At any time during the woman's pregnancy, if:
(i) The termination procedure is necessary to protect the life or health of the woman;
(ii) The fetus is affected by genetic defect or serious deformity or abnormality.
(c) Regulations. -- The Department may adopt regulations that:
(1) Are both necessary and the least intrusive method to protect the life or health of the woman; and
(2) Are not inconsistent with established medical practice.
(d) Liability. -- The physician is not liable for civil damages or subject to a criminal penalty for a decision to perform an abortion under this section made in good faith and in the physician's best medical judgment in accordance with accepted standards of medical practice.
Curran, D. S. (2009). Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws. Duke Law Journal, Vol. 58 (6), 1107.
Fetal Homicide State Laws. (accessed 2016, September 23). Retrieved from National Conference of State Legislatures: www.ncsl.org/research/health/fetal-homicide-state-laws-aspx
Maryland Code. (2016, Accessed September 23). Retrieved from Lexis Nexis: www.lexisnexis.com/hottopics/mdcode
Oakley, M. (2009). Agenda Setting and State Policy DIffusion: The Effects of Media Attention, State Court Decisions, and Policy Learning on Fetal KIlling Policy. Social Science Quarterly, Vol. 90(1), 164-178.
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