To Be or Not to Be ... Born

Abortion-Era Laws Struggle with Life in the Womb

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CHARLESTON, South Carolina, MARCH 8, 2003 (Zenit.org).- After decades of legal abortion in many countries, courts are struggling to come to terms over the status of unborn children.



The South Carolina Supreme Court, in a 3-2 decision, upheld the conviction of a woman charged with killing her fetus by using cocaine. The state's top court upheld an earlier ruling that said a fetus that can survive on its own outside the womb is a person under child abuse and neglect laws, The State newspaper reported Jan. 28.

Regina McKnight was sentenced to 12 years in prison after being found guilty of homicide by child abuse after she gave birth to a stillborn, 5-pound girl May 15, 1999. The baby's age was estimated between 34 and 37 weeks.

Greg Hembree, the 15th Circuit solicitor, said he wasn't surprised. "It's a victory for children, and it's a victory for responsible parents who take care of their kids." At least 72 women have been prosecuted statewide since 1989 for using drugs while they were pregnant, said Lynn Paltrow, one of McKnight's lawyers.

A court in Pennsylvania has also weighed in on the issue. An Erie County judge upheld murder charges against a woman accused of killing the fetus of a romantic rival, the Associated Press reported Jan. 26. The judge rejected defense arguments that the state's fetal homicide law conflicts with abortion rights.

Corinne Wilcott had argued that she couldn't be charged with murder if the state didn't consider the fetus to be a person. But Judge John Trucilla ruled that although a pregnant woman can choose to have an abortion, she has no choice in an attack that kills her unborn child. He also rejected defense arguments that murder charges should not be filed if the fetus could not live outside the womb. Pennsylvania is one of 27 states that have fetal homicide laws and allows murder charges for the killing of a fetus of any age.

Doctor found guilty

Other legal decisions concern parents whose newly born children suffer from some defect, previously unknown to them. The parents then take legal action, claiming damages, because they say that if they had known about the problems they would have aborted the child.

In the Canadian province of British Columbia a doctor who failed to ensure tests for a woman whose child was born with Down syndrome has been ordered to pay $300,000 Canadian ($202,000 US) in compensation, the Vancouver Sun reported Jan. 30.

The decision by the British Columbia Supreme Court found that Dr. Ken Kan was guilty of medical negligence. The money will help pay for the lifelong care of 5-year-old Sherry Fung. Last year a Supreme Court of Canada ruling also found that a doctor was at fault for not testing a fetus who was later born with Down syndrome.

Canadian tribunals are not alone in taking this position. In Spain last year a tribunal awarded 71,000 euros ($77,000) to a mother whose child was born without an arm and suffers from other problems, the Spanish paper El Mundo reported July 6.

According to the paper, the decision was the first in Spanish judicial history that recognized the "right not to be born." In the opinion of the four judges of the Audiencia Nacional, the poor quality of an ultrasound examination that failed to detect the abnormalities had prejudicial effects for the mother, who otherwise could have legally aborted her unborn child.

Wrongful?

And in Germany the supreme tribunal, the Federal Court, awarded damages against a doctor who failed to detect a baby's disabilities during prenatal scans, Reuters reported June 19. The court awarded the parents 275,800 euros ($300,000) as well as an additional compensation to the mother of 10,225 euros. The child was born with no hands or lower arms and with seriously deformed legs. The mother told the court that she would have had a late abortion if she had known the child was going to be deformed.

The court's decision is the first legal confirmation of the 1995 law that removed the time limit for aborting deformed fetuses if the health of the mother is deemed at risk. That change, which removed a limit at the 22nd week of pregnancy, was criticized by many as anti-constitutional since fetuses are considered capable of independent survival from around the 22nd week.

German doctors are protesting at the court decision, led by professor Jörg-Dietrich Hoppe, president of the German Doctors' Association. He said: "Everyone has been given a right by this decision, to propagate in a made-for-measure fashion." The association's statement added: "The aim of medical treatment is to heal, alleviate or prevent illnesses and disabilities -- not to kill the sick and disabled."

Apart from "wrongful birth" cases, other litigation involves suing on behalf of the child for "wrongful life," in effect saying doctors are guilty of allowing them to be alive. A judge in Canada ruled that a trial on this subject, now expected to take place next year, could proceed, the Edmonton Journal reported March 5.

Christine Catherine Holowaychuk, the mother of a 3-year-old girl born with club feet, no thumbs and other serious physical and mental disabilities, is suing an Edmonton doctor. Up until now suing for "wrongful life" hasn't been successful in any Canadian court.

For such a case to succeed, said Margaret Somerville, founding director of the Center for Medicine, Ethics and Law at Montreal's McGill University, "the court has to say no life is better than life. We say no matter what, life is better than no life."

In a judgment last year on this matter in Australia the Supreme Court in the state of New South Wales ruled that wrongful life cases have no place in the nation's law, the Age newspaper reported June 12.

In a test case on whether disabled children can sue doctors for "negligence" that resulted in their being born rather than aborted, Justice Timothy Studdert ruled wrongful life was not recognized in Australian courts.

There were clearly identifiable public policy considerations against the recognition of such claims, the judge said. They included "the precious nature of human life itself, and the erosive effect that the acceptance of such claims would have upon the value to be accorded to human life," Justice Studdert said.

"Allied to this," he said, "is the impact that the recognition of this class of claim would have upon the self-esteem of those born with disabilities and upon their perceived worthiness by other members of society." The judge added that if wrongful life claims were recognized, mothers would be open to being sued for continuing with a pregnancy. A possibility, no doubt, that has already entered the minds of a few tort lawyers.