Introduction
Fetal homicide may be defined as the planned killing of a fetus. Ostensibly, the dispute concerning the rights of fetuses is not a strange idea. In general, fetal homicide laws are laws crafted to address matters that relate to any form of injustice directed towards unborn babies or fetuses. Originally, European common law did not recognize fetuses as human beings and thus offered not protection against the killing of a fetus. This however changed with amendments to the law to cover both human beings and fetuses (Gardner & Anderson, 2014). Subsequently many other states followed suit and abandoned the earlier requirements of the law. The death of a fetus inside a mother’s womb is therefore considered homicide. As viability is an important consideration under the abortion law, scholars argue that it should equally be a benchmark when it comes to fetal homicide laws (Marzilli (2009). According to Solinger (2013), fetal viability refers to the ability of the fetus to live outside the mother’s womb. Ostensibly, no common agreement regarding the viability of a fetus has ever been reached. In the recent past, however, there has been agreement among various scholars that fetal viability may be reached at week four or five during the development progress of the fetus.
In this paper, I will look at fetal homicide laws in different states and according to my Christian worldview determine the direction that fetal homicide law should take and, whether each state should have such a law. In case it is necessary to have the law, a possible standard to be used and the practicality of such a standard should be agreed upon. A discussion of the contradiction between fetal homicide laws and abortion laws is also presented towards the end.
Fetal Homicide Laws in Different States
Apparently, no ruling by the Supreme Court exists to guidelines for the development of fetal homicide laws in different states. As such, states consider different aspects when crafting these laws. While some states come up with legislations that safeguard the fetus throughout its development, others establish the point at which the protection of a fetus is deemed necessary, usually towards the end of the development cycle (Marzilli, 2009).
Presently, about 40 states in the United States have fetal homicide laws (Solinger, 2013). A number of states including Alabama, Arizona, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wisconsin have fetal homicide laws that are applicable during the earliest stages of the development of a fetus including conception, fertilization and post-fertilization.
In Wisconsin, intentional destruction of the life of a fetus is punishable under the fetal homicide law. Ostensibly, the law also covers the death of the mother regardless of whether or not the fetus was alive at the time of the mother’s death. The state of West Virginia regards unborn babies very highly and the fetal homicide law prohibits any killing of fetuses as they are considered victims of crimes committed against a person. According to the fetal homicide law in Texas, an unborn child is defined as a human being right from the stage of gestation until the child is finally born (Steinbock, 2011). The law in Utah, however, works somehow differently. While the law initially recognized an unborn child as a human being and would prosecute any one found guilty of killing a fetus, it was later amended to indicate that any person who terminates the life of a fetus, including the mother is not guilty of homicide. In Rhodes Island, Michigan, Nevada, and Maryland killing a viable unborn child is defined as manslaughter.
To ensure that selfish individuals do not take advantage of existing loop holes to destroy the lives of innocent fetuses, it is vital for every state to have laws that protect the rights of fetuses.
Christian Worldview
Biblically, life begins at conception. The moment a child is conceived, it is believed to have a life. As a result, any injustice done to a fetus is wrong and should be punished (Schroedel, 2000). While Christians are convinced that an individual’s life starts immediately conception takes place, it appears to be a very contentious issue and one that has led to so much confusion and variations in existing fetal homicide laws. It is however, important to note that religious scholars tend to examine issues relating to the rights of fetuses guided by their doctrines (Dubow, 2010). The most common doctrines include Judaism, Hinduism, Buddhism and Catholicism.
Whilst Missouri believes that the life of an individual starts at the point of conception, there are other states that hold a contrary opinion. The law in California, for example, only prohibits the killing of a fetus that is beyond seven weeks old (McCord, McCord & Bailey, 2011). According to the fetal homicide law in California, the interests of the mother once a fetus reaches seven weeks and above are not at stake.
According to Jewish values and by extension, other Christians, it is wrong to claim that an unborn child is not a person. Christian ethics generally suggest that a fetus deserves recognition at every stage of its development. The fact that the fetus is still in the mother’s womb does not in any way imply that it should be treated unfairly (Cherry, 2013). Rather, it must be treated with respect and regarded as sacred. There is, however, a slight deviation in the way the Jewish Christians regard the fetus. Thus, while Jewish ethics advocate for the rights of a fetus to be respected, the full personhood status can only be ascribed after birth. According to the teachings of the Catholic Church, life starts at conception and throughout the development stages, the rights of the fetus must be respected (Schwartz & Isser, 2011). Earlier on, however, the presence of the soul could only be recognized at the quickening stage. Presently, the Catholic Church considers s fetus to be a fully formed human being and this therefore implies that abortion is tantamount to homicide.
Importance of Having Fetal Homicide Laws
The life of any human being is important. This is regardless of whether reference is made of a fetus or an already born child. Although fetal homicide laws are similar in most states in the United States, the discussion above indicates that variations exist to some extent. This not withstanding, it is imperative to have the law in every state to ensure the safety of unborn children.
According to Marzilli (2009), fetal homicide laws have received criticisms largely because the law does not consider the rights of women. Under the fetal homicide laws, the unborn child is considered the victim while the mother is not. Therefore, while the laws protect the rights of the unborn child, some scholars argue that these laws only serve to promote violence against women. However, it is important to recognize the fact that fetal homicide laws play a big role in the protection of innocent unborn babies. Apparently, various concerns that people have regarding rights of women to abort are sometimes considered to be out of place (Mullings, Marquart & Hartley, 2012). As such, they should not form grounds for invalidating fetal homicide laws. For some people, the enactment of fetal homicide laws is seen as a serious threat to proponents of abortion in the society.
Fetal homicide laws are also important as they help to put in place legal structures that are concerned with the well being of unborn babies and require that they be given the same status as that of full grown human beings. Consequently, violent acts against pregnant women imply violence against the unborn babies as well.
Standards and their Practicality
Proponents of the fetal homicide law argue that both the mother and the unborn child have a right to protection and this right must be respected by all. There is also a big concern among supporters that if not checked, pregnant women could engage in activities that can easily jeopardize the lives of fetuses (Schroedel, 2000). Among such behaviors are uncontrolled drinking, use of drugs, and smoking.
Those who are opposed to the fetal homicide law are mostly concerned with the practical aspect of determining the homicide of a fetus. Closely linked to this is the fear that it may be extremely difficult to tell the actual cause of a miscarriage or death of a fetus. Opponents further believe that fetal homicide laws put women’s freedom to abort at risk as they fear that the law will catch up with them. Furthermore, there is a concern that fetal homicide laws may leave women as the only victims in the event that an unborn baby dies.
Considering that homicide has to do with the unlawful killing of a living human being, there is a challenge for the state to determine that the homicide victim was actually alive at the time the crime was committed (Gardner & Anderson, 2014). This certainly presents a serious challenge when the life of an unborn child is considered. According to Marzilli (2009), those who are opposed to the fetal homicide law are generally concerned about the practicality of the law. Their argument is often built around the allegation that it is impossible to prove beyond reasonable doubt as required by law, that the fetus was wrongfully killed.
Clearly, there is a big confusion in determining the correct standard to be used in matters of fetal homicide. As previously discussed, different states apply different standards when crafting and applying the fetal homicide law. This is further complicated by the fact that it is practically impossible to have a common agreement on when the life of an individual actually begins. Seemingly, the problem of determining when the life of a human being starts never existed in the past (Schwartz & Isser, 2011). The challenge is now being faced as a result of medical and technological advancements that make it possible to establish the viability of a fetus during the early stages of pregnancy. This has subsequently changed the way people view pregnancy and abortion.
Contradiction between Fetal Homicide Laws and Abortion Laws
In general, there have been fears that fetal homicide laws exist to knock down the rights of women to abort. In some instances, it has been argued that before a fetus reaches viability, the right of the mother to abort should be respected and the fetus may not be granted the same rights as the mother. According to Schwartz and Isser (2011), common law legalized abortion until the point at which the feeling of life could be detected. As earlier stated, the negative attitude toward abortion is a result of medical and technological advancements that have made it easier to determine quite early whether a fetus is viable.
In a court ruling in the state of Utah by Chief Justice Christine Durham, it was argued that the state of Utah had no power to declare a fetus as a human being. Allegedly, doing so conflicted with the right to choose abortion. This view is also supported by Cherry (2013) who reasoned that abortion is not regarded as homicide and as such, an act of abortion done in order to preserve the life and health of a mother is acceptable. The ruling by Chief Justice Christine Durham is a clear indicates that abortion laws are superior to fetal homicide laws and gives mothers freedom to make a decision that might negatively affect a fetus during pregnancy. In addition, declaring the termination of a fetus’ life as unlawful would automatically render abortion illegal in all circumstances.
Although some scholars are convinced that abortion should be allowed if the life of the mother is in danger, differences may arise concerning the extent of the threat to the mother’s life and whether it justifies abortion (Cherry, 2013). Arguably, this is meant to ensure that no one takes advantage of the exception and uses flimsy health excuses to undertake an abortion. Whilst those who support the establishment of fetal homicide laws believe that injustice toward pregnant women also affects the unborn children, pro-abortion groups argue that the enactment of fetal homicide laws is tantamount to denying women their reproductive freedom. Many people in the United States have, however, fully support the enactment of legislations that recognize and protect the rights of unborn babies.
Conclusion
Based on the arguments presented in this paper, there seems to be numerous variations concerning the establishment and application of fetal homicide laws. Apparently, these differences can be seen everywhere including within the Christian community. Although killing a fetus is generally unacceptable among Christians, it may not be regarded as homicide by some Christians. Therefore, while it is important to recognize and respect the rights of a fetus, the accompanying degree of importance may be less when compared to when the baby is finally born.
As has been explained, the practicality of fetal homicide laws is questionable and those who are opposed to the enactment of the fetal homicide laws worry about the ability to establish beyond a reasonable doubt that the killing of a fetus is a homicide. Conflicts between fetal homicide and abortion laws usually arise because of the different opinions that are held by different individuals and groups. Despite the general agreement that abortion should be permitted in the event that it can be determined that the life of the mother is in danger, there are concerns the magnitude of the supposed danger to the mother.
Considering the arguments of pro-life advocates, it is imperative to create fetal homicide laws in order to safeguard fetuses. Luckily, advancements in the medical and technological field have presented us with new ways of checking the viability of fetuses and it is only fair that the unborn babies should be given a chance to develop and be born.
References
Cherry, M. (2013). Religious Perspectives on Bioethics. New York, NY: Taylor & Francis.
Dubow, S. (2010). Ourselves Unborn: A History of the Fetus in Modern America. New York, NY: Oxford University Press.
Gardner, T. & Anderson, T. (2014). Criminal Law. Clifton Park, NY: Cengage Learning.
Marzilli, A. (2009). Fetal Rights. New York, NY: Infobase Publishing.
McCord, J. W. H., McCord, S. L. & Bailey, C. S. (2011). Criminal Law and Procedure for the Paralegal. Boston, MA: Cengage Learning.
Mullings, J., Marquart, J. & Hartley, D. (2012). The Victimization of Children: Emerging Issues. New York, NY: Routledge.
Schroedel, J. R. (2000). Is the Fetus a Person?: A Comparison of Policies Across the Fifty States. New York: Cornell University Press.
Schwartz, L. L. & Isser, N. K. (2011). Endangered Children: Homicide and Other Crimes, Second Edition. Boca Raton, Florida: CRC Press.
Solinger, R. (2013). Reproductive Politics. New York, NY: Oxford University Press.
Steinbock, B. (2011). Life Before Birth: The Moral and Legal Status of Embryos and Fetuses, Second Edition. New York, NY: Oxford University Press.