The Born Alive Rule 3 Essay Example

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    Law
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    Undergraduate
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The Born Alive Rule 3

SHOULD THE ‘BORN ALIVE RULE’ BE ABOLISHED IN NSW?

Introduction

The ‘Born Alive Rule’ is a legal provision that stipulates that aspects pertaining and applying to the criminal law equally apply to a child that is born alive. Many societies across the globe are slowly doing away with this rule as advances in the field of science have given new results pertaining to the foetal being. In New South Wales, however, this rule is still in practice.

This paper, therefore, intends to tackle the question ‘should the born alive rule be abolished in New South Wales?’ The paper will do so by looking into and analysing the different arguments put forward by authorities in the fields of medicine and law pertaining to this matter. The measures taken by other countries that practice the same rule will also be looked into so as to determine where the NSW lies. After doing so a conclusion will be drawn on what step/s need to be taken with regards to the born alive rule in NSW.

In order to tackle the above question with the seriousness it deserves, one needs to know what is life and when does it begin?

So, what is life and when does it begin?

The student dictionary by Thorndike and Barnhart defines life as ‘the quality or condition of living or being alive; the forms of existence that people, animals, plants and all living organisms have’ (Thorndike & Barnhart, 1992). Many scholars, particularly medics, have argued on the question when does life begin? Different arguments have been put forward in an attempt to explain when life begins, some say life begins at birth others say life begins at conception. The definition of life given above, however, gives the impression that life begins at conception. It begins at fertilization when the sperm unites with the oocyte. The origin of this rule (the born alive rule) dates back to the 18th Century to the Common Law in England on murder charges. These laws failed to consider what life is and when it begins. It was put forward Edward Coke who identified three significant qualities; a reasonable creature, in natural being and in the King’s peace.

Aristotle defines a reasonable creature as the «rational soul» that infuses the foetus with «human beingness». This basically implied that since the foetus was not considered to be rational, it could not be regarded as a reasonable creature.

As for ‘in natural being’ essentially this quality applied mainly to murder trials in that «the thing killed must be in part of the world of physical beings. This has been interpreted as meaning completely expelled from the womb. Again, this meant that the foetus was not considered as a natural being when the rule being formulated.

The last quality of being in the Kings Peace also applied to murder trails. It basically meant a loyal subject of the monarch. An outlaw, for instance, was not in the King’s peace, and not subject to protection of the law.

Clearly these qualities failed to consider what life is and its significance. From the definition of life, we see that it encompasses everything that is alive (in other words, that which is breathing). The rationality argument, in my view, did and does not hold water. Take an instance where a child has just been born, he/she is barely a week old, would he/she be considered as being reasonable ‘rational’? This child is not rational for reason that the mind is not yet fully developed to an extent that it can comprehend various aspects of the society. Ironically, in a murder trial where one is accused of killing this child that is just born, he might be given the sentence he deserves based on the rationality argument as opposed to a case where the foetus is dead and the same rationality argument will be used.

The natural being argument also seems illogical given that it fails to consider when life begins. By limiting natural beings to only those who are in there physical being, the rule neglects those that have just begun life (Stuart; 2010). If the physical being has the right to life, what makes the foetal life much less important? The definition of life has clearly indicated that apart from the condition of living, life is also the form of existence that people, animals, plants and all living organisms have’ (Thorndike & Barnhart,1992). One of the forms of existence that people have is the foetal form and therefore the foetus should also be considered as life.

The court case Barrett Versus Coroner over the death of a baby due to a condition known as severe shoulder dystocia. Lisa Barrett, who was the midwife, argued that the Coroner should follow the born alive rule as it states that ‘the baby must be alive after being completely born’. This case, however, brought out the issue of the definition of life and when does it begin? The court’s ruling was that the baby was born alive despite the fact that he never took a breath outside the womb (Barrett vs Coroner, 2010). The whole case was more of the definition of life, which in my view, begins at conception.

Other Arguments against Coke’s Conditions

foetal heart, ultrasonographyAs mentioned, scientific findings and thus arguments have been put forward against this rule. Such findings have been facilitated by the use of tests such as monitoring
, and have thus made it possible to prove the existence of the life of a child inside the womb. Contrary to what might have been the belief then, these tests have shown that while in the womb, the foetus has life. For this reason this life should be treated with equal respect as life outside the womb.foetoscopy, and

suggest that the physiology required for consciousness does not exist prior to the 28th week, as this is when the thalamic afferents begin to enter the cerebral cortex. Neonatal perception (Savell, 2006). Advances in Reason have put to the test the question of the rationality/»reasonableness» of the foetus in the womb. It is generally believed that a functioning cerebral cortex is required for consciousness and for the processing of abstract thought or Behavioural neuroscienceAn avalanche in the development in

Quickening has also proved to be a major argument against this rule. Quickening refers to the initial motion of the foetus in the uterus as it is perceived and felt by an expectant mother. The Oxford English Dictionary goes ahead and defines quickening as ‘to reach the stage of pregnancy in which the child shows signs of life’. Given this definitions and explanations, is it not safe to argue against the rule. This is in light with the fact that one of the conditions of the rule was that of ‘in natural being’ implying of the physical. This rule only considered that which they could see with their eyes. The fact that the foetus is still in the womb and no one can see it does not imply that it does not exist physically (Seymour, 2000). This is proved by the act of quickening, natural beings make movements (it is one of their characteristics). The foetal movement should also, therefore, be considered as one of a natural being.

What Measures have been taken by the rest of the world on this matter?

, for instance, the California Penal Code was revised to redefine murder to include the unlawful killing of a foetus. CaliforniaThe ‘born alive rule’ having been started in England, it spread through many of the common wealth countries. It is therefore no surprise many countries that practiced (or still practice it) it are former colonies of Britain. Be that as it may, many countries are basically doing away with this rule given recent developments in the field of medical science. The United States of America has abolished this rule in some states. Although others argue for it, a wide majority of the states have abolished the rule. In

Conclusion

The direction in which this paper has taken is one in which it is against the ‘born alive rule’. To answer the question whether the rule should be abolished in NSW or not, the answer would, therefore, is yes it should be abolished. The cases put forward by various authorities in this field have shown the rule is archaic to the medical and legal professions. The argument of when life begins to determine whether the foetus should be considered as life or not has been dealt with in this paper by showing that life clearly begins at conception. The foetal life should therefore also be protected by the law (Brody, Acker, Logan, 2001).

Advances in medical science have also shown that there exists the ability to reason by the foetus. It has also proved that the foetus can be considered as a natural being given that there exists life and movement in it. The trend taken by many other states that practiced this rule should also serve as an example to NSW. There is a reason why many of these states are revising and amending their laws especially when it comes to this matter. Perhaps the NSW should also look into theirs.

Bibliography

David C. Brody, James R. Acker, Wayne A. Logan 2001, «Criminal Homicide,». Criminal Law. Jones and Bartlett. p. 411.

John A. Seymour,2000, Childbirth and the Law, Oxford University Press. pp. 140–143.

Savell K, 2006, Is the ‘Born Alive’ Rule Outdated and Indefensible, Sydney Law Review Vol. 28, p625-664.

Stuart K, 2010, The ‘Last Vestiges of Life’, Journal of Law and Medicine 18(1), p28-31.

BARRETT v CORONER’S COURT OF SOUTH AUSTRALIA [2010] SASCFC 70