THE CURRENT STATE OF LEGAL RECOGNITION OF THE BEGINNING OF HUMAN LIFE AND RECOMMENDATIONS FOR CHANGE

1. INTRODUCTION

The purpose of this paper is to analyze the current status of American legal recognition of the beginning of human life and make recommendations for change. In section two I shall survey the present state of recognition of the beginning of human life in the varying American law traditions — Constitutional, statutory, and common. In section three I shall offer “brain birth” as a superior alternative point in time in human development to fix the emergence of the legal rights of “personhood” (as compared to the current Supreme Court of the United States [SCOTUS] standard of viability). In section four I shall analyze the implications to the different American legal systems if viability were to be replaced with “brain birth”. The final section of this paper will summarize the preceding sections.

2. CURRENT STATE OF U.S. LEGAL RECOGNITION OF BEGINNING OF HUMAN LIFE

As noted in Health Law: Cases, Materials and Problems, 7th ed. by Barry R. Furrow et al (West Publishing Co., 2013), though children have typically been treated differently from adults in American law, the basic “Constitutional rights of competent and incompetent adults have been extended to children from the time of birth.” Yet, American legal systems have had much greater difficulty deciding which, and if, legal rights apply to fetuses.

A. UNITED STATES CONSTITUTIONAL LAW

For United States Constitutional purposes, the current state of legal recognition of a fetus — whether viable or nonviable — as a person is based on the SCOTUS decision in the landmark case Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d. 147 (1973).   In Roe the SCOTUS held that the term “person”, as it is specifically used in the Fourteenth Amendment of the U.S. Constitution did not refer to and was not intended to refer to a fetus. The SCOTUS further ruled, however, that, even though Constitutional rights of “persons” did not apply to a fetus, States have legitimate interests in protecting and preserving a fetus. Justice Blackmun summarized the decision as follows: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Thus, Roe partially extended the basic “Constitutional rights of competent and incompetent adults” to viable fetuses. Yet, the practical effect of Roe on the legal rights of viable fetuses has been minimal, for the number of viable fetuses aborted annually in the U.S. is exceedingly small.

The Roe decision has been reinterpreted by the SCOTUS several times, particularly in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) and Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), but the principle finding that a pregnant woman can abort a nonviable fetus for any reason has always been retained.

B. UNITED STATES STATUTORY LAW

For United States statutory purposes, the current state of legal recognition of a fetus — whether viable or nonviable — as a person is jurisdiction-dependent.

For example, several States have recently made the penalties for feticide equal to the penalties for homicide and/or adopted new homicide statutes that explicitly include fetuses. State homicide statutes that do not distinguish between viable and nonviable fetuses have withstood multiple assaults from opponents. Due process arguments are a common basis for such claims.

An alternative and logically compelling argument that has also failed to overturn such State feticide statutes is the equal protection assertion that States make a false distinction when they treat some who end the life of a nonviable fetus as murderers while others, including the pregnant woman herself and her physician, are not treated as murderers. Key cases in this vein include People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50, 872 P.2d 591 (1994); People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189, 1200 (1991); and People v. Kurr, 253 Mich.App. 317, 654 N.W.2d 651, 656 (2002).

C. UNITED STATES COMMON LAW

For United States common law purposes, the current state of legal recognition of a fetus — whether viable or nonviable — as a person, like statutory law, is jurisdiction-dependent.

Cases decided in a manner seemingly consistent with Roe include Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), in which a Pennsylvania court determined that a Pennsylvania wrongful death and survival statute applied to a previously viable but stillborn fetus who died before birth; In re Air Crash Disaster at Detroit Metropolitan Airport on August 16, 1987, 737 F.Supp. 427 (E.D.Mich.1989), in which a Michigan court determined that a Michigan wrongful death and survival statute applied to a fetus who was viable at the time of a fatal injury but not to a fetus who was nonviable at the time of a fatal injury; and Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 121 P.3d 1256 (2005), in which an Arizona court determined that an Arizona wrongful death and survival statute did not apply to a frozen, non-implanted, eight cell pre-embryo.

Cases concluded in a manner seemingly inconsistent with the SCOTUS Roe decision include Wiersma v. Maple Leaf Farms, 543 N.W.2d 787 (S.D.1996), in which a South Dakota court determined that a South Dakota wrongful death and survival statute applied to a nonviable fetus; Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (W.Va.1995), in which a West Virginia court determined that a West Virginia wrongful death and survival statute applied to a nonviable fetus; and Connor v. Monkem Co., 898 S.W.2d 89 (Mo.1995), in which a Missouri court determined that a Missouri wrongful death and survival statue applied to a nonviable fetus.

Of interest, the SCOTUS itself and many commentators — an example is Jeffrey Lenow in his chapter “Legal Interests of the Fetal Patient” in Legal Medicine: Legal Dynamics of Medical Encounters, 7th ed. by the American College of Legal Medicine Textbook Committee (Mosby Elsevier, 2007) — disagree with the characterization that the rulings listed in the previous paragraph were in any way inconsistent with Roe. They recall that “Justice Blackmun noted that wrongful death actions were brought to vindicate the parent’s right to recover for the loss of ‘potentiality of life,’ not of a person ‘in the whole sense.’ Since parents bring prenatal wrongful death actions on their own behalf, parental consent to an abortion constitutes a waiver of any prenatal wrongful death action.” However, most professional philosophers (and me) view potentiality as a highly questionable metaphysical concept. If potentiality cannot be justified, then the ‘potentiality of life’ argument used in Roe cannot be justified and, further, the derivative argument about wrongful death claims also cannot be justified.

3. BRAIN BIRTH

The fundamental question that the Roe decision did not answer is as follows: When does a rights-bearing “person” come into existence? There is no biological, legal, or ethical consensus on this issue. A generally acceptable consensus is needed because non-rights-bearing “persons” and rights-bearing “persons” can justly be treated very differently. As noted in Health Law: Cases, Materials and Problems, 7th ed. by Barry R. Furrow et al (West Publishing Co., 2013), it is crucial “that we should try to reach a consensus on just when a person’s life should be held to begin, for the decision does have important practical consequences – it directly affects the rights of other embryos, of fetuses, and of people.”

The practical consequence of no consensus (the current situation) is incoherence. The Constitutional status quo, based on Roe, is that a partial rights-bearing human emerges at fetal viability and a full rights-bearing human emerges at birth. The statutory status quo, based on numerous conflicting State statutes, is that a rights-bearing human emerges at conception or at fetal viability or at birth depending on who kills the fetus and the physical location of the pregnant mother. The common law status quo, again based on numerous conflicting State laws, is that a rights-bearing human emerges at concept or at fetal viability or at birth — so the biological parents of a dead fetus can seek legal recovery of damages via wrongful death statutes — also depending on who kills the fetus and the physical location of the pregnant mother.

The Roe viability (24 weeks’ gestation) choice is not a good standard. Viability refers to the potential for survival of a fetus if the fetus were to be removed from the uterus and is heavily dependent on the medical technology and human capital available. For example, a May 07, 2015 New England Journal of Medicine article by M.A. Rysavy entitled “Treatment Practices and Outcomes in Preterm Infants” reported that, for National Institute of Child Health and Human Development (NICHD) Neonatal Research Network hospitals, the active treatment rates of infants born at 22 -24 weeks’ gestation varied significantly and this difference was responsible for a sizable proportion of between-NICHD hospital variation in overall survival and survival without impairment. Also, technological advancement naturally improves viability and, if ectogenesis is feasible, it is conceivable that, at least in future industrialized societies, non-viability may become an antiquated concept.

There are multiple alternatives to the non-ideal Roe viability standard of emergence of “personhood” that can be justified scientifically. However, I assert that, based on the current state of scientific knowledge, the best time point to fix as the legal transition from a non-rights-bearing fetus to a rights-bearing “person” is the “brain birth” standard as explicated by Professor D. Gareth Jones in a 1989 Journal of Medical Ethics article entitled “Brain Birth and Personal Identity” and a 1998 Journal of Medical Ethics article entitled “The Problematic Symmetry between Brain Birth and Brain Birth”. In these two papers, Professor Jones reviews human embryonic neurological development, the whole brain and higher brain standards of brain death, and multiple versions of the “brain birth” concept and ultimately concludes that, if “brain birth” is utilized, “it is preferable to place it at a time when most developmental sequences have started so, by reference to specific neurological data, this would place it at approximately 24-28 weeks’ gestation.” I recommend 26 weeks’ gestation as the exact time point, for this is when EEGs of premature babies reveal emergence of functional bilaterally synchronous brain waves, as noted by R. Spehlmann in EEG Primer (New York: Elsevier/North-Holland, 1981). I reject earlier time points because the fundamental difference between a rights-bearing being and a non-right-bearing being is the mental capacity to reason and, since the brain is the organ of mental capacity in humans, development of a functional brain at 26 weeks’ gestation is the logical event that marks the emergence of a rights-bearing “person”. I reject later time points because, while a functional brain has developed at 26 weeks’ gestation, the capacity to reason is not employed immediately. Why does this matter? If the capacity to reason must be employed for a being to be deemed a rights-bearing “person”, then infants, many children, and mentally handicapped//traumatic brain-damaged/severely intoxicated/severely ill/demented adults are not rights-bearing “persons”. Bioethicist Sigrid Fry-Revere, in a 1992 The Journal of Clinical Ethics article entitled “A Libertarian Critique of H. Tristram Engelhardt, Jr.’s The Foundation of Bioethics, summarizes this principle succinctly, arguing that it “is not the degree of reasoning power a human being possesses that makes a ‘person’, but the presence of the minimum amount of mental equipment necessary for such reasoning regardless of whether it is ever employed.”

4. RECOMMENDATIONS FOR CHANGE

Therefore, I recommend that all American legal traditions (Constitutional, statutory, and common law) and jurisdictions (federal, State, and local) adopt the “brain birth” standard of 26 weeks’ gestation as the exact time point of transition from a non-rights-bearing fetus to a rights-bearing “person”. What would be the legal consequences of such a shift? Let us explore.

A. UNITED STATES CONSTITUTIONAL LAW

From a U.S. Constitution standpoint, adopting the recommended change would not only not limit current nonviable fetus abortion practices, but also it would extend the duration of the legal abortion for any reason window period from 0-24 weeks’ gestation to 0-26 weeks’ gestation. However, the recommended change would alter, if interpreted logically, abortion practices from 26 weeks’ gestation until birth, for the life of the mother exception for viable fetus abortion would be retained, but the health of the mother exception would not — which means Stenberg v. Carhart 530 U.S. 914, 120 S. Ct. 2597, 147 L.Ed.2d 743 (2000), in which the SCOTUS jettisoned Nebraska’s abortion ban because it did not permit abortion even when the health of the mother was in jeopardy, would need to be overturned. Why? Philosophically, rights-bearing “person” A has the right to kill rights-bearing “person” B if rights-bearing “person” A fears for her life (i.e. self-defense), but does not have the right to kill rights-bearing “person” B if she merely fears for her health.

B. UNITED STATES STATUTORY LAW

From a United States statutory law standpoint, adopting the recommended change would support the existence of State homicide statutes that apply equal punishment for the killing of a fetus 26 weeks’ gestation or older and all “persons” post-birth, but would disallow State homicide statutes that seek to criminalize the killing for any reason by anyone of a fetus less than 26 weeks’ gestation.

What would be the legal options for women who first learn of their pregnancy and/or decide they do not want to be a child’s guardian after 26 weeks’ gestation? An increase in illegal abortions, which is clearly not the goal of any just policy change, would be the result if no additional changes in American statutory law occurred. Simultaneous deregulation of the adoption market to permit voluntary sales of parental rights would be necessary, as outlined by Donald Boudreaux in his 1995 Cato Journal paper entitled “A Modest Proposal to Deregulate Infant Adoptions”, to provide just choices for women who find themselves in these regrettable scenarios.

Finally, what would be the legal options for a rights-bearing fetus (26 weeks’ gestation or later) if her pregnant mother refuses to utilize the aforementioned adoption market, seek appropriate medical care for herself and the fetus, and stop engaging in actions known to harm the fetus (e.g. various addictions)? F. A. Chervenaki, in his 1993 Obstetrics and Gynecology paper entitled “An Ethical Justification for Emergency, Coerced Cesarean Delivery” argued that there are extraordinary situations in which forced maternal and/or fetal treatment is justifiable. A surprising (and disturbing) implication of adopting my recommended change is support for Chervenaki’s position. Notable cases to date regarding such forced fetal therapy include In re A.C., 573 A.2d 1235, 1237 (D.C. Court of Appeals, 1990), in which a 26 weeks pregnant woman near death from cancer was forced to undergo a C-section in an attempt to save the life of the fetus; Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537 (1964), in which a 32 weeks pregnant Jehovah’s Witness was forced to undergo blood transfusions to save the life of the fetus; and Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457 (1981), in which a religious mother with complete placenta previa was forced to undergo a C-section to save the life of the fetus.

C. UNITED STATES COMMON LAW

From a United State common law standpoint, adopting the recommended change would be compatible with the existence of State wrongful death statutes that permit recovery of damages for the death of fetuses 26 weeks’ gestation or older, but would be incompatible with State wrongful death statutes that seek to allow recovery of damages for the death of fetuses less than 26 weeks’ gestation.

5. SUMMARY

In conclusion, the current state of U.S. legal recognition of the beginning of human life is analytically incoherent, for the three primary American legal traditions (Constitutional law, statutory law, and common law) do not share a consensus on the point in human development to fix as the transition from a non-rights-bearing fetus to a rights-bearing “person”. The Roe viability standard is particularly faulty, and I recommend that all legal systems replace their current “personhood” standards with my modified “brain birth” standard (26 weeks’ gestation, based on EEG evidence of bilaterally synchronous functional brain activity.).   Thorough application of this recommendation would alter U.S. constitutional, statutory, and common law.