Core questions in the abortion access debate

U.S. and Canadian laws defining
when human personhood begins

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U.S. Federal Law:

Public Law 108-212 "The Unborn Victims of Violence Act of 2004," a.k.a. Laci and Connor's Law recognizes that an unborn embryo or fetus can be a legal victim if it is injured or killed during the commission of a federal crime of violence. There are over 60 such crimes defined. The law was named after a mother, Laci Peterson, and her fetus, Connor Peterson, who were murdered circa 2002-Christmas by Scott Peterson in California. The law defines "a child in utero" as any "member of the species homo sapiens, at any stage of development, who is carried in the womb."

The bill passed the House by a vote of 254 to 163 on 2004-FEB-26. It passed the Senate by a vote of 61 to 38 on 2004-MAR-25. President George W Bush signed it into law on 2004-APR-01. He said:

"Any time an expectant mother is a victim of violence, two lives are in the balance, each deserving protection, and each deserving justice. If the crime is murder and the unborn child's life ends, justice demands a full accounting under the law."

Senator John Kerry (D-MA), who ran against Bush in 2004, voted against the bill. He said:

"I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy."

Text of the law: Section 1841 "Protection of unborn children" states:

	(a)(1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.
	(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother.
	(B) An offense under this section does not require proof that-- (i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or (ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.
	(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being.
	(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section. 1

The law provides an exception for instances of abortion or other medical procedure.

There is a very similar law contained in the military justice system. ₁

U.S. State Laws:

According to the National Right to Life Committee, on 2011-MAY-27, 27 states have homicide laws that recognize that an unborn embryo or fetus "during any stage of development" can be a victim: AL, AK, AZ, GA, ID, IL, KS, KY, LA, MI, MN, MS, MO, NE, NC, ND, OH, OK, PA, SC, SD, TN, TX, UT, VA, WV, and WI. Many of these laws cover only those embryos in the womb, and not pre-embryos after fertilization and before implantation.

Ten states have laws that recognize that an unborn embryo or fetus during the later stages of pregnancy can be a victim: AR, CA, FL, IN, MD, MA, NV, RI, and WA. These laws typically apply after quickening (when the pregnant woman first senses fetal movement), or viability (when the fetus can sustain itself outside the mother's womb), or at some specific point in pregnancy: e.g. 7 to 8 weeks, or 12 weeks.

In the state of New York, one law states that the killing of an "unborn child" at twenty-four weeks or more gestation is homicide. However, another law defines a victim of homicide as a "human being who has been born and is alive." ₂

Scott Peterson was convicted in California of a double homicide in the deaths of his wife and fetus. He was given the death penalty during 2005-MAR.

Canadian law:

The Criminal Code of Canada defines many legal matters across all the provinces and territories of Canada. It is typically up to the province or territory to enforce the criminal code. The pertinent clause is #223 in Part VIII "Offences against the person and reputation." It states that a fetus becomes a human being only when it is born. However, if a person injures an embryo or fetus so that it dies after being born, then that person is guilty of homicide:

	(1) When child becomes human being: A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation, or (c) the navel string is severed.
	(2) Killing child: A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being." 3

Recent court cases involving injury or death of a fetus include:

	1981: Sandra Price stabbed Bernice Daniels in the abdomen, inducing a premature birth. The child lived for only 19 minutes before dying as a result of the stabbing. Prince was convicted of causing bodily harm to the mother and manslaughter in the death of the child.
	1988: The Supreme Court of Canada declared the Canadian abortion law unconstitutional. Parliament was never able to pass a new law, and so the country remains to this day without any law restricting abortion. Theoretically, a woman can legally obtain an abortion up to the point where the woman is giving birth. In practice, medical associations' regulations prohibit abortions after the 20th week of pregnancy, except in very unusual and rare circumstances.
	1989: Jean-Guy Tremblay attempted to prevent his "friend" Chantal Daigle from obtaining an abortion. She was repeatedly assaulted. The Supreme Court of Canada ruled that he could not stop the abortion. This established a precedent that a fetus is without a legal status.
	1993: Cynthia Dobson was involved in an automobile accident. He fetus was injured and delivered the same day by Caesarian section. He developed cerebral palsy. The child's grandfather sued the mother for negligence in driving. The court decided that the mother was not responsible for the injuries because the child was not born at the time of the accident.
	1996: Brenda Drummond shot herself in the vagina with a pellet gun. Two days later, her son was born with brain injuries. The court ruled that Drummond could not be charged with attempted murder because the child was a fetus at the time of the incident.
	2007: Aysun Sesen died from stab wounds and her female fetus was stillborn during a subsequent Caesarian Section. Her husband was charged only with the murder and aggravated assault of his wife.  4

Disclaimer:

This essay provides general information only. Do not rely on it to determine your legal rights or status. We recommend that you seek legal advice from a qualified attorney before making personal legal decisions.

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References used:

1. "Laci and Conner's Law ... H.R.1997," National Right to Life, at: http://www.nrlc.org/

2. "State Homicide Laws That Recognize Unborn Victims; (Fetal Homicide)," National Right to Life, 2007-MAY-09, at: http://www.nrlc.org/

3. "Criminal Code," Canadian Legal Information Institute, at: http://www.canlii.org/

4. Michele Henry & Brett Popplewell, "No charges in fetus death," The Toronto Star, 2007-OCT-04, at: http://www.thestar.com/

Copyright © 2007 by Ontario Consultants on Religious Tolerance
Latest update: 2012-APR-27
Author: B.A. Robinson

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