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 remains......it 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 body....it 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.


References:
CORONERS ACT, 2003 SOUTH AUSTRALIA RULING OF CORONER
http://www.courts.sa.gov.au/courts/coroner/findings/findings_2010/Spencer-Koch_Tate.pdf
R v Iby (2005) 63 NSWLR 278, 248
http://stopthedrugwar.org/chronicle/2008/may/16/pregnancy_south_carolina_supreme
26484 - McKnight v. State; http://www.sccourts.org/opinions/displayOpinion.cfm?caseNo=26484National Advocates for Pregnant Women: http://www.advocatesforpregnantwomen.org/
Doctor says mother ignored homebirth warning:
http://www.abc.net.au/news/2011-11-17/home-birth-twins-death-coroner/3677156
Pic ref: http://www.solarnavigator.net/animal_kingdom/humans/babies.htm

Being a Midwife, two very different cases:

Its days like today you remember why you are a midwife. I had the pleasure and privilege to support a couple at birth with a great team of midwives who all in their own way added to the wonderful experience for the couple during the day. As I walked in the room the woman had an epidural in and was kneeling on all fours there was an air of serenity, peacefulness and expectation. This was the couples fourth child, they were so in love you would think this was their first baby. The woman was tall very attractive quiet and confident. The husband was short, ordinary in appearance quietly spoken, at first glance you might wonder what attracted the pair to each other they seemed so different. Yet it would only take a few moments to see why this was such a dynamic couple, they were so in tune to each other, a mutual respect, he was devoted to his wife and she was listening intently to her body.... it was beautiful to observe, it wasn’t so much what they were saying it was how they were with each other, the unspoken word..... The touch, the silence, the unity, the support from just being there from the husband without saying a word.... and the inward journey the woman took to be able to gently push her baby out and without tearing. It was a superb birth of a gorgeous 10.11 lb (4855gm) baby girl, who cried as soon as she was born. The parents were delighted with their prize baby and mum was very pleased with how her labour and birth went, she was beaming from ear to ear.... she looked beautiful as she cuddled her baby against her skin. It was no surprise when the family came to visit that the children were delightful, they came in with flowers excited they could hardly contain themselves, yet they did, they were so caring towards their mother, smiling constantly and in total ore of their new baby sister, they all sat around their mum and talked about the birth and dad hovered around busy taking photos as mum breast fed the baby...... I was truly touched by their closeness, unity and obvious love for each other.



My second case was a 16 year old at 38 weeks feeling unwell with symptoms of pre-eclampsia. Some 16 year olds are just too young to have babies, they are babies themselves, they can be challenging and this one was. I wonder if not enough education about what is actually happening to them in pregnancy is part of the problem or if when they do get the education they are not listening and don’t take it all in. However in my experience this age group can be difficult in any health setting. The girl was also needle phobic and was promised numbing cream....She was supported by some friends and her mum was en route...... and she wanted her mum understandably however I did ask the question did she want her mum there at conception... this did raise a smile and said no...her admission CTG was reactive (meaning normal) and she was maybe having some tightening, her blood pressure was boarder line.... and she was sent to walk around to see if that would encourage some contractions whilst awaiting blood results. The decision based on the blood results was to have an induction of labour, so after explaining the process to her...... the course of action was set...... a vaginal examination, prostin gel 2mg and CTG for 30mins, then wait for labour to commence, reassess in 6 hours, more prostin or Artificial Rupture Membranes. There were times I felt that this young woman did not understand some of the issues discussed, and this was confirmed when I helped her to the toilet and she asked me to explain again what the doctor had said.....which I did and hoped she had a better understanding of the issues. Seems straight forward, however nothing goes according to plan...... 5 mins after putting on the CTG post insertion of the prostin, she started to have decelerations, one after the other....I called for help....there were no obvious contractions.... the doctors were in attendance....we attempted to wash the prostin out using a saline wash, which did improve the trace, however we ended up going to theatre for an emergency Cesarean section approximately 15 mins later. It took some convincing to put the IV cannula in... due to the needle phobia.... but there was success...This is the first time in my years of midwifery that I have seen such a reaction to prostin gel.......yes it can happen sometimes the baby just does not take well to these things. The end result was a beautiful baby girl weighting 2710gm, mother and baby well, and her mother made it to support her in theatre and help with the baby..... This young girl has a lot of growing up to do, I am sure she is still in shock and the reality will hit in a few days. it is a shame to have very little understanding of the process of birth.....I am pleased that she will have time to adjust and will have help with mother crafting before she goes home, it is fortunate she has a very supportive mother and I suspect that the mother will be doing a lot of the caring of the baby......it was nice to see the family together.... mother, baby and grandmother.....
All’s well that ends well...... thank God.....

ref pictures:bawandinesh.name/whats-love/
www.thewomens.org.au/CardiotocographCTGinterp