[EMAIL PROTECTED] (William J. Foristal) writes:
Hi Linda,
It seems to be a type of Catch 22 situation. I have heard of cases (wish
I could remember the reference names) where the state has waited until
the birth of a baby to determine if damage had been done to the fetus
when the mother was assaulted. The case I'm thinking of was a rape and
assault. The objective was to charge the perp with some form of assault
and battery against the fetus that resulted in harm. But I'm not sure how
that turned out.
It seems clear that the law doesn't really consider a person's rights or
legal standing until after birth. But that in some cases it may be
possible to assign a criminal liability to an action done against the
mother while carrying the fetus that results in damage to the fetus that
is subsequently born. But if the fetus dies then there does not seem to
be any legal standing for criminal or civil charges.
Bill
On Fri, 27 Mar 1998 13:15:07 -0800 "Linda D. Misek-Falkoff, Ph.D., J.D."
<[EMAIL PROTECTED]> writes:
>"Linda D. Misek-Falkoff, Ph.D., J.D." <[EMAIL PROTECTED]>
>writes:
>
>
>Hi Bill - agreed, in the civil case the fetus would simply have
>prospective standing, it seems: future access to relief, once being
>born
>But the criminal code wouldn't even give *that* much. Based on
>argments
>from "majority" supportin personhood, and that being calculated from
>first breath of life (and ona case we would like yet to read), the
>crim
>case gives it seems no prospective or future 'standing' to the "child"
>as an agrieved, if its self's system is insulted.
>
>So contrasted with civil code where high up in the hierarchy of codes,
>and mirroring the US constitution, the fetus basically has life,
>liberty, and property interest albeit subject to birth.. the crim law
>falls short of this (entitlement?).
>
>Now here's a stinger: on the surface, the crim law is interested in
>harm
>to the mother; the civil code is broad but also includes the fetus in
>the range of persons which the law accepts as possibly harmed, and
>with
>a cause of action at law.
>
>But how can one argue the 'civil code' applies to the 'crim case'?
>First, if clearly the Civil is superordinate (umbrella language)
>ranging
>over citizens, should it not do so in a crim context? Or, should the
>crim context take that away? Secondly, it the mother (or father!) in a
>crim context is assaulted by the other parent, does this not colorably
>apply to insult to the fetus? If so, the subject of the harm is not
>only
>the hramed parent but the dependent child.
>
>Next we have a procedural question: didn't the lawyers bring this up?
>Does the court have an obligation to raise questions like this or
>introduce references?
>
>There are a lot of technical and basically humanistic questions here,
>and all posts will help... glad you chose to post, and please feel
>free
>to correct or amend the above. :) Best, LDMF.
>
>--------------------William J. Foristal wrote:------------------------
>
>> >43. Besides the personal rights mentioned or recognized in the
>> >Government Code, every person has, subject to the qualifications
>and
>> >restrictions provided by law, the right of protection from bodily
>> >restraint or harm, from personal insult, from defamation, and from
>> >injury to his personal relations.
>> >
>> >
>> >
>> >43.1. A child conceived, but not yet born, is deemed an existing
>> >person, so far as necessary for the child's interests in the event
>of
>> >the child's subsequent birth.
>>
>> HI Sue,
>>
>> Ooops, instead of helping I think I see an argument that would go
>against
>> you here. It seems to me that 43.1 covers situations where something
>> occurs during a pregnancy that affects the child who is
>"subsequently
>> born". This would enable legal action, for example, against a
>person who
>> caused the injury or damage. An example of this would be a car
>accident
>> where a drunk driver injured a pregnant woman and her child is born
>with
>> serious defects caused by the accident. Or someone who assaulted a
>> pregnant woman and caused defects in the child that w
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as subsequently
>> born.
>>
>> Ironically, the law does not specify the rights of a fetus who is
>NOT
>> "subsequently born" but dies as a result of the criminal action.
>Given
>> the legality of abortion, it seems a defense attorney could argue
>that
>> the fetus had no rights at the time of its death. That, in order to
>have
>> any rights with respect to the assault, the fetus would have had to
>> survived long enough to be "subsequently born."
>>
>> But then again, I'm not a lawyer, so don't let me rain on your
>parade
>> here. :)
>>
>> Bill
>>
>>
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