Introduction

The debate over the rights which should be held by fetus has been ongoing for a long time now in the legislative arena. Weaver (2007) noted that advocates have joined in groups with the aim of realizing the provision of what has been known as the fetal rights in various states’ statutes. Such groups as pro-life advocates and those of pro-choices advocates have therefore arisen with each wanting to outdo the other in the debate which seemingly will not be ending soon. This debate has been common within the Americans who have mostly been agitated by the publication of the recent cases, in which an unborn child and/or their mothers have had to undergo an accidental death. This has led to the wide use of such terms as fetal homicide all over the courts in the United States. However, fetal homicide should be included in the murder statutes.

With time, various states have brought to this debate the case of killings of fetus, resulting from such violent acts as taken against their mothers during pregnancy. Such acts may result into the final death of the fetus. Keyes (2006) notes that the major focus of such laws has been the various kinds of harms suffered by women who are pregnant and even the resulting loss of the pregnancy from such incidences. The laws have generally ignored the issue of the fetal rights (McBridge, 2007). However, with the increasing attempts by the various lobby groups, there has been turn of events with certain states coming up with laws designed to recognize fetus as a person. This has been evident in a number of states’ “feticide” laws or fetal homicide laws. 

Such laws have been crafted to address cases, in which a pregnant woman is attacked by a criminal, resulting into her death and/or the injury of her unborn child. However, the crucial question has been whether in such a case the person can claim one or two victims, particularly, whether the fetus should be considered as having rights or not (Emanuel, 2007).

This has seen legislations such as the Unborn Victim of Violent Act, the Fetal Protection Act, as well as the Preborn Victims of Violence Act. Such acts have generated heated debates based on the fact that the legislators themselves, just like the different religions, hold different believes on the issues. Those in support of these acts have maintained that just like the lives of mothers, the lives of unborn children should be protected, as well. The prolife advocates have maintained that the criminalization of the fetus homicide cases by the acts is just. To them, the acts have provided an opportunity for the rights of both pregnant mothers and their unborn children to be protected (Tsao, 1998).

On the other hand, those who have argued against the laws, seeking to provide for the rights of the fetus, have argued that such laws if implemented could limit the rights of women to choose to carry out an abortion even in times of danger. This has been based on the argument that such laws are likely to become a “slippery slope,” (Tsao, 1998).

According to the pro-choice advocates, such laws as those which are made specifically for the protection of the fetus grant the unborn a distinct status from their pregnant mothers. To them, this would create a situation, in which the fetus is viewed as adversaries to their own mothers. Therefore, they ask questions of what would happen in cases where it is mothers who accidentally causes her unborn child to die (Schroeder, 2000). Their other concern has been that if passed into laws, the fetal homicide laws could also be extended to limit women’s behavioral rights during their periods of pregnancy. Such behaviors as may be limited include the use of drugs, smoking as well as taking of alcohol. This group has thus advocated for laws which are strictly applied to criminalize any intended assault against pregnant women, while taking mothers and not their unborn children as victims of the assault.

However, certain states have continued to enact such laws with the estimations, showing that a minimum of 38 states have passed various acts into homicide laws. Another study has shown that a minimum of 23 states are implementing laws that are related to fetal homicide, especially those applicable to the earliest stages of pregnancy. With the cases of fetal homicide being on the increase, it is without doubt that the attention of the Americans will continuously be drawn into the issue (National Conference of State Legislatures, 2012).

A number of case studies of such court cases which are directly related to the issue can be cited. The first case identified was that of Commonwealth v. Morris which was majorly dealing with the legality of fetal homicide. That is, whether one who committed such an act as causing fetal death would be held a criminal by the nation’s law. The case followed an accident which occurred on the 15th of March 2001, when a pickup truck belonging to Morris Charles had a collision with a car, in which Troy Thornsberry and his wife Veronica were travelling. This was during the time, when the couple was heading to the hospital for the delivery of their anticipated child. The accident led to the death of both Veronica and her unborn child. On the other hand, Mr. Thornsberry survived the accident, albeit with some injuries. The court picked up the issue in a case which saw Morris being charged for the resulting deaths with a double count of wanton murder (Weaver, 2007).

However, what raised a heated debate was the action of the court of appeal to reverse Morris’ conviction of the death of the fetus.  The court held to the common law which was the rule of “born alive”, which states that a child could only enjoy rights that emerge with a person from the time of delivery; namely, ones a child obtains when he or she is out of the womb. This meant that it was not considered a murder killing an unborn child. The “born alive” rule was thus overruled in this particular case. However, the court indicated that the new statutory construction would lead to the dispensing of the rule, since with the advancement in the medical field, it has been possible for the health, the possible cause of the death of the fetus and the child’s viability to be determined.  Since that time things have changed, and it is noted that Kentucky presently has the statute of fetal homicide (Weaver, 2007).

This debate has led to the question of when exactly can life be considered to begin. This question has been approached differently by various states, with each state passing diverse provisions in their fetal homicide. For instance, a number of states, including Missouri, have adjusted their laws to provide that a fetus should be considered alive from the very time a conception occurs. Some states have also been careful to ensure that such laws do not interfere with an individual’s right to abortion (Weaver, 2007).

Another example that provides a good illustration of the debate on the time life is supposed to begin was that of Robert Keeler and his ex-wife. Montaldo (2012) reported that Keeler had threatened his ex-wife that he was going to “stomp it” from her womb. This was in the year 1969, during her ex-wife’s eighth month in pregnancy. Montaldo (2012) noted that the man had beaten his wife to the point that she lost her conscious. Though Keeler delivered later, it was done prematurely, and the baby had suffered a fracture in her skull.

Therefore, the question that arose in the court case was whether this case could be treated as that of an attempt of murder against the unborn child. Though prosecutors tried charging Keeler with both the murder of the unborn child and beating of the ex-wife, the charges were dismissed by the Supreme Court of California. The argument put by the court was that it was not possible for one to kill what has not been bathed. They court considered that the fetus had not acquired a status of a human being. However, the public intervened through civil right groups. The resulting pressure saw the eventual amendment of the murder statute to cover fetus that had more than 7 weeks or those who had gone beyond the stage of the embryo (Montaldo, 2012).

This has drastically changed the notion of whether killing an inborn child should be treated as an accident or fetal homicide. People are increasingly being held responsible for killing fetus that are 7 weeks and above. A good example is the case of Laci Peterson, whose unborn son was murdered by Scott Peterson, the child’s dad.  According to the new California law, Scott was found guilty of a multiple charge of murder. This made him qualify for a death penalty. Thus, an indication that this debate has now taken another dimension with most states having realized the need to amend their murder status with the purpose of including the case of unborn children. However, the difference has remained to be in terms of when exactly life begins.

Conclusion

In conclusion, fetal homicide is thus a common concept to many Americans. In this context, it is essential to support the views of the majority of the citizens concerning the issue. Consequently, any criminal that has directly made an unborn child to die should be held responsible for the murder.

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