[EMAIL PROTECTED] (William J. Foristal) writes:
Hi Linda,
Yes, it seems to me that the civil statute is designed to enable suits to
be brought against a person who causes damage to a fetus that is
subsequently born with defects that affect the quality of that person's
life. For example, if someone assaults a pregnant woman and the baby is
born mentally retarded. A civil jury could find against the defendant
and assign punitive and compensatory damages to the plaintiff, the child
affected.
But I don't think any statute allows for the rights of a fetus with
respect to an interest in survival or well being of the mother, UNLESS
the fetus is subsequently born and suffers damages from an event
inflicted on the pregnant mother.
Bill
On Fri, 27 Mar 1998 21:27:49 -0800 "Linda D. Misek-Falkoff, Ph.D., J.D."
<[EMAIL PROTECTED]> writes:
>"Linda D. Misek-Falkoff, Ph.D., J.D." <[EMAIL PROTECTED]>
>writes:
>
>
>Oh I see Bill, I can buy that, you're quite clear. It's like in the
>Civil Code the rights vest at conception but they don't accrue til
>birth
>(is that a valid extrapolation of your position? Hope you'll comment).
>Something like that, you might sharpen my words. But I see what you
>mean and it certainly seems sound.
>
>Now perhaps we can still contrast the Ward criminal case that says
>nothing vests at conception (or before) or after. Maybe the rights
>vest
>and accrue and the same time <!?!> at birth.
>
>On the practical level, there still seems a big gap between the civil
>and criminal, and the civil would hold sway because it describes basic
>rights that are vested and accrue long before the criminal act in
>focus?
>
>It still seems possible to resolve them by first not denying the
>individuality of the existent fetus as a 'future person' (see Doc's
>post) with primal dependicies on the mother. Second, one can posit
>that
>the fetus has built-in desire or endowed right not to be harmed,
>following from the mother's interest in not being harmed and the
>child's dependence on her being protected.
>
>I think worked out logically or mathematically this could be 'feature
>inheritance' or something close. But that's a bit dry, here in
>context.
>:) LDMF.
>------------------William J. Foristal
>wrote:-----------------------------
>>
>> [EMAIL PROTECTED] (William J. Foristal) writes:
>>
>> Hi Linda,
>>
>> I still think that the way the statute reads the fetus must be
>> "subsequently born" before he/she can have legal standing with
>respect to
>> any rights. Yes, the large interest in the mother's protection and
>> survival is paramount with respect to the fetus. But the rights are
>not
>> conveyed until after the fetus is born. At least that's the way the
>> statute seems to read to me.
>>
>> And the cases where it would make the most difference is when the
>mother
>> survives but the fetus dies. Instead of murder the perp would be
>charged
>> with a lesser crime.
>>
>> Bill
>>
>> On Fri, 27 Mar 1998 15:09:49 -0800 "Linda D. Misek-Falkoff, Ph.D.,
>J.D."
>> <[EMAIL PROTECTED]> writes:
>> >"Linda D. Misek-Falkoff, Ph.D., J.D." <[EMAIL PROTECTED]>
>> >writes:
>> >
>> >
>> >H Bill - I am having a bit of trouble finding Susan's post of the
>> >civil
>> >statute. Here are two relevant paragraphs I had clipped out,
>> >suggesting
>> >that an unborn offspring is a child and thus a person, with life
>and
>> >liberty rights. The crim case, though, goes to the mothers rights.
>Do
>> >you think if the civil statute were to govern in the criminal
>context,
>> >the child would have a large interest in the mother'sa interests
>(in
>> >being protected)? That could IMO be a bridge between the two, and
>> >perhaps the legslative intent of both sets of laws comingle here.
>> >Sue?
>> >Terry? Streve? Others?
>:)
>> >LDMF.
>> >--------------------------- Code:
>> >---------------------------------------
>> >
>> >CALIFORNIA CODES
>> >CIVIL CODE
>> >SECTION 43-53
>> >
>> >
>> >
>> >
>> >43. Besides the personal rights mentioned or recognized in the
>> >Government Code, every person has, sub
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ject 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.
>> >
>> >
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>>
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