I read a tragic story in the paper today, of a couple who’s unborn child was killed in a car accident involving an allegedly drug-affected driver. Because their daughter Zoe did not technically take a breath before dying the police were unable to charge the perpetrator with manslaughter. In fact the police report provided to Ms Donegan and the driver’s insurance company did not even mention that she lost the child.
So now the couple are campaigning for
the death of an unborn child to be a crime attracting a charge of murder or manslaughter. But the problem is, and it seems I’m not the only one to see this, this bangs straight up against abortion laws. One commenter put it this way:
I’m sorry, but it doesn’t matter how devastated these people are, this will never happen. The law they want can simply not exist as long as any form of abortion is legal. It just can’t. There has to be a very clear line between abortion (legal or unlawful) and murder. That line already exists and it’s birth. Changing this would give too much room for error and interpretation. It just can’t happen.
The problem is acute. This baby was 32 weeks. Medicare presently funds abortions of babies as old as 26 weeks. Where would you draw the line if not at birth? At the age of survivability? Premature babies have been known to survive from 21 weeks! To charge this driver of manslaughter would necessitate charging abortion doctors of the same. Which of course raises some very thorny questions.
Curious Christian 
It’s pretty hard to hear people tell you your unborn child doesn’t matter because they didn’t get born. Of course I think it was a child that got killed and her life was as important as anyone else’s.
LikeLike
Abortion is murder. I draw the line at conception. But modern times being as they are, would it not be reasonable to call this case manslaughter? The couple wanted the child. Their plan was to birth her and raise her. Of course, present day doesn’t allow for case by case decisions but should in an unusual situation like this one. At the very least, loss of the child should be included in the police report. Egad, what is this world coming to?
LikeLike
There have been similar cases before; I recall a few years ago a man in Australia repeatedly kicked his pregnant ex-girlfriend in the body so that she miscarried; his intention was to avoid paying child support; he was jailed for aggravated assault on the woman. There have been murder convictions in Texas and Utah for induced miscarriage, e.g.
http://writ.news.findlaw.com/colb/20070206.html
On the other side: “the concern here isn’t really about fetuses or life or any of that. It’s about punishing women.”
http://www.feministe.us/blog/archives/2010/02/23/utah-bill-would-criminalize-miscarriage/
Common ground, anyone?
LikeLike
I don’t have any answers myself, just a bunch of observations and questions. It’s really got me thinking. Till this point I’ve maintained the position that, while I reject abortion as a Christian option, I find criminalization problematic. But I find myself sympathisizing with this couple’s cry for justice and legal recognition.
Yet, contra Emily, I can’t see how a case by case basis would be legally viable or resolve any of the ethical dilemmas. Are we really ready to say: it’s manslaughter if the couple cares for their unborn child, abortion if they don’t? To me that sounds equivalent to saying, it’s human only if the couple says so. Is humanity so subjective? Can the child not be said to have humanity indedendant of its parents emotional attachment? Moreover, what if one partner cared for the child and another didn’t? What an ambiguity that would create! And what if the mother changed her tune during the course of her pregnancy? “Oh, I didn’t care for it at first but at the time of the accident I did, so now compensate me.” Hmmm.
So, say we reject the case by case approach and instead go for a universal cutoff point of … say 30 weeks for the sake of the argument. Wouldn’t this allow for manslaughter charges to be brought against the driver without criminalizing early term abortions? Sounds simple at face value, but again I see heaps of problems. Apart from the arbitariness of 30 weeks (in comparison to conception on the one hand and birth on the other) what a legal mindfield it would create! I mean, look at how many women get their unborn child’s age estimate revised up and down during the course of their pregnancy. Was the child 29 weeks and 6 days when the doctor aborted, or 30 weeks and 1 day? Could make the difference between a service payment and a jail sentance. How do we establish it with the degree of certainty necessary to bring criminal charges? And irrespective, would the above mother have been any less upset if this had happened at 21 weeks? Somehow I suspect not.
Which makes me wonder, given my sympathy for this woman, have I been wrong in my opposition to criminalization?
LikeLike
I think it was at least manslaughter. Nonetheless, the legal experts and laws that apply do not concede that, I think for fairly “politically correct” and “for ideological reasons”.
Interesting how lofty popularist academic and humanist opinion determines and enforces its ethics at the cost of the humane and morally just.
That leaves an possible aggravated assault and/or a cupable driving charge option with a maximum penalty of, from what I recall from something I read a few weeks ago of about 10-15 years. I reckon it would reasonably just for that to apply to the drug-affected driver who chose to drive when intoxicated resulting in this tragedy.
I’m sick of irresponsible drunken and drug-affected drivers repeatedly getting away with this sort of danagerous behaviour due to technicalities of law and way-too-soft approaches by courts to equity and justice and law enforcement.
LikeLike
I’m sure the thing that hurts the most is the lack of recognition that the child’s life mattered too. Are criminal charges required or just an acknowlegement that something precious and important was taken away from this couple.
LikeLike
But this is the problem I think. Any recognition of this unborn child as human has the potential to confer human rights on all unborn children. If this child’s life matters then they all matter.
LikeLike
In the UK, it is legal to terminate a pregnancy if there is a profound disability right up until term.
With terminations which take place late enough that there is a possibility that the foetus might be delivered alive, potassium is injected into the heart before labour is induced, to make sure the foetus is dead. The reason is that if the foetus is born alive, then the doctor has a legal duty to do everything they can to keep it alive. Which is a bit tricky if the original intent was to perform a termination.
LikeLike
Well…they do all matter.
LikeLike
I agree. The law doesn’t. Thus I’m rethinking my position about the law.
Helen, that sounds…so cold
LikeLike
I seem to recall a case where the parents of an unborn child injured by a gun shot successfully sued for damages. But I can’t remember which country it was in or how long ago it was.
LikeLike
Sued for damages. I could see that being possible. Damages implies the child is a posession of the parent rather than a person in its own right. That would allow some compensation without exposing abortion doctors to murder charges in the way a manslaughter charge for the above driver would. Sounds horribly cold and cynical though, to say the child is not a person, merely a possession. Wonder what the distraught mother would say to that. Still, better than no acknowledgement of loss at all. But, how would you calculate the value of a child?
LikeLike
Matt – I suppose it does sound …cold (or brutal?)
I’m a doctor in the UK and unfortunately this is the legal and practical reality of what happens. I don’t like it either.
LikeLike
It’s my hope that tragedies such as these will continue to force the issue of the status of fetus as person or non-person in the legal sense, which is crucial as Peter Kreeft has elucidated in books like “The Unaborted Socrates” so well. I also find the idea of criminalization of abortion difficult to defend to my pro-choice friends. It’s interesting that often the argument goes that way immediately:
Me: “killing a fetus is killing a person.”
Them: “so you want to outlaw abortion?”
the person issue is obscured
LikeLike
Or could we say a fetus is socially problematic precisely because it’s a liminal entity? A fetus is not a full person. It cannot live independantly from its mother, particularly in the early stages of development. But neither is it a full nonperson. It can feel pain and suffering, particularly in the latter stage of development. It’s transitioning between the two. It’s liminal. But therein lies the problem: the law does not like liminality. The law cannot say abortion doctors are half guilty and half innocent.
LikeLike