Wednesday, February 8, 2012

Born Alive Rule - is it time to rethink

A few seconds after birth:

There is much debate over recent months regarding this issue; traditionally in Australia and some other countries a fetus has no rights until “Born Alive”, otherwise considered the “Born Alive Rule”. This rule has been around since the 17th century, at this time viability was considered when the woman could feel the fetus this was generally known as “the quickening”. It is now the 21st century technology is advancing at great speed, ultrasound is very definitive, there is no question now about the viability of a term fetus, is it time to reconsider the rights of the term fetus. An embryo is usually from fertilization, early stages of growth and then a fetus from 12 weeks of pregnancy; The definition of a term fetus is when it is considered that the fetus can survive outside the uterus without any assistance this happens from 37 weeks - 40 weeks. Once born most people refer to the infant as a baby.

When considering the question of fetal rights it is important to consider what is considered a human being? Is the fetus a human being? What or who is a person? Can the fetus survive outside the woman’s body? These questions raise many ethical questions: My masters 10yrs ago was, is it time to re think fetal rights, and I concluded then that a woman’s autonomy was sacrosanct. 10 yrs on I think it is time to open Pandora’s box and debate the issue again.

The born alive rule can be viewed from several perspectives; women - pregnancy – domestic violence – violence against pregnant women – criminal responsibility. I am going to view several circumstances; This blog is not a judgement of anyone, I am expressing a point of view to illicit debate on the issue of does a ‘term fetus’ need rights:

A recent case in WA, Matthew Silvestro who had a history of domestic violence was found guilty of causing grievous bodily harm when he drove his car into another car, causing his pregnant partner Vanessa De Bari serious harm (she spent 8mths in hospital recovering from injuries) including the death of her 8 month fetus. His sentence was a two year driving suspension and $8000.00 fine to which he pleaded he was unemployed and unable to pay this fine he ordered to pay costs of $119.20

South Australia’s coroner has been conducting an inquest into several homebirth deaths of term fetus’s. The issue of “sign of life” and the “Born Alive Rule” has been bought into question and debated. Another issue that has been debated during the SA coronal inquiry is the decision to have a home birth, particularly because it involved twins a higher risk – and that no backup plan was made. One twin was born alive at home and the second suffered brain damage and died later. This is not a judgement, this is about questioning what is a human life? And does a fetus have a right to life? Do we have the right to dictate by our actions whether a term fetus lives or dies? It is time to debate this question further.
Dr McCaul said at the SA coronial inquiry:
"I had a strong sinking feeling because I felt she strongly still wanted to go ahead with a home birth," she said.
"I don't think it's safe to deliver twins at home. I think the risk of complications is high.
"She listened to what I had to say but I didn't feel that it was influencing her. I don't know that frustrated was the right word. I felt a bit powerless I think."

Another case from SA that has a questionable ruling that of Tate Spencer-Koch case in which the coroner states
“Tate had been a perfectly viable fetus until the time of her delivery........the PEA (Pulseless Electrical Activity) that excited in Tate after her birth, acknowledging as I do that it was slow and could not support a mechanical heart beat, and could not be reversed, is to be regarded as the last vestige of her human existence. This last vestige existed at a time after she had been fully delivered. As such it was a sign of life that existed after she had been fully delivered. (1.27)
.......the PEA of 15 beats per minute that was detected in Tate approximately 10 minutes after she was fully delivered was a sign of life for the purposes of the law......all facts of the born alive rule have been satisfied in this case and I find Tate was a person in the eyes of the law and for the purposes of the jurisdictional requirements of the Coroners Act 2003”.(1.28)
This case will change the course of history if this definition of a sign of life is my opinion that PEA is not a sign of life and that is because at this stage there is no cardiac output, you are essentially dead....there is only an electrical current that runs through your body as the last automatic process of the does not mean you are alive.... It is however interesting to read the process and see how the coroner has come to his conclusions, it is all about words and how they are used and what they mean.

Interestingly in the case of R v Iby a case of an assault that caused the subsequent death of a fetus/child. This case heard that the presence of a heart beat was sufficient to satisfy the born alive rule. It was also found that there was no ‘common law definition of what constitutes ‘life’ for the purposes of the born alive rule (248).

WHO defines live birth as
Live birth refers to the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life - e.g. beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles - whether or not the umbilical cord has been cut or the placenta is attached. Each product of such a birth is considered live born

Fetal rights is a real dichotomy the right of a woman to her own autonomy and her body v the right of a fully formed term fetus who would live if able to be born..... what is the answer...In my mind there is no question that a term fetus is a human being: What is required is that there is community support / structures for midwives who choose to support women who make these choices; one thing is for sure, women have the right to choose where and how to birth – what is required is for hospitals and health professionals to be more flexible.

In 1999 Regina McKnight the first woman in South Carolina was convicted of homicide by child abuse in 2001 after a jury bought scientifically unsupported arguments that her cocaine use caused the stillbirth. Regina suffered the charge for suffering an unintentional stillbirth after having used cocaine during her pregnancy.

McKnight unsuccessfully appealed her conviction in 2002, challenging the constitutionality of using murder statutes to prosecute women who experience stillbirths. But in a split decision, the state Supreme Court upheld her conviction, offering a novel interpretation of the state's homicide laws. The court held that any woman who unintentionally heightens the risk of a stillbirth could be found guilty of homicide with "extreme indifference to human life." Under this doctrine, the court held, any pregnant woman who engages in activity "potentially fatal" to her fetus could be charged with murder.

In 2008, the Supreme Court ruled that McKnight had an unfair trial... McKnight argues that counsel was ineffective in her preparation of her defense through expert testimony and cross-examination...and the court also found that the information given to the jury about the supposed link between McKnight's cocaine use and her stillbirth was not scientifically supported. More importantly this ruling sends a clear message to lawyers as it was found that current research simply does not support the assumption that antenatal exposure to cocaine results in harm to the fetus, and the opinion makes clear that it is certainly ‘no more harmful to a fetus than nicotine use, poor nutrition, lack of antenatal care, or other conditions commonly associated with the lower socio economic group. This ruling will send a clear message to lawyers to get the facts right and not be misguided by medical misinformation.

It is a travesty that Regina McKnight spent 9 years in prison for a crime she did not commit and in South Carolina 90 women have been convicted of drug use during pregnancy, this is not the answer to the problem.

As a midwife sometimes this issue creates a dilemma for me as I firmly believe in the woman’s right to choose what happens to her body. That is under no circumstances should she be forced to accept any treatment she does not want. How do we balance the need to protect the term fetus that is a fully formed human life, but for the fact it has not been born alive it has no rights.... one minute in utero it has no rights, however once born and shows a sign of life you cannot kill it..... this just does not make sense to me........

I do think a term fetus should be afforded some right to life.....but I'm not sure how we can do this without impinging on women's right to autonomy, which must take precedence.

R v Iby (2005) 63 NSWLR 278, 248
- McKnight v. State; Advocates for Pregnant Women:
Doctor says mother ignored homebirth warning:
Pic ref:

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