ISSUES RAISED BY HUMAN CLONING RESEARCH HEARING ...

17tions among judges and practical difficulties of medical proof, was something ofa laggard, but since World War II there has been an explosive recognition ‘‘thatthe unborn child in the path of an automobile is as much a person in the streetas the mother.’’ Judicial adknowledgment ‘‘that the unborn child is entitled tothe law’s protection’’ has resulted in ordering blood transfusion necessary tosave his life, over the cogent countervailing claims to the free exercise of religion.In a word, the unborn child is a person to be protected in his propertyrights and against negligence, and to be afforded the reach of equity’s affirmativearm for support and sustenance. 49Although abortion law was virtually abolished by the Supreme Court in 1973, Roedid not touch assaults on the unborn child outside the context of abortion. Roe mayhave stifled an ongoing process of increasing state protection for unborn human lifein the field of criminal and tort law, 50 but that process has progressively continuedoutside the immediate context of abortion despite Roe. 51 The upshot of this progressiveprotection has been a gradual abolition of the artificial born alive rule and agrowth in protection of the unborn child, even if stillborn, and without regard to thestage of gestation.In tort law today, virtually all states allow suits for prenatal injuries for childrenlater born alive. (Obviously, if the child is not born alive, the suit would be forwrongful death.) Today, at least thirty-six jurisdictions allow wrongful death actionsfor a stillborn child, while a dwindling minority of eight to ten states reject thecause of action. 52 A majority of state courts have expressly or implicitly rejected viabilityas a limitation for liability for nonfatal prenatal injuries. 53 As recently as1993, the Pennsylvania Supreme Court pointed out that ‘‘no jurisdiction acceptsthe...assertion that a child must be viable at the time of birth in order to maintainan action in wrongful death’’ (where the child is born alive and dies thereafter). 542. Criminal Law—Progressive development has continued in criminal law as well.At the time of Roe, several states treated the killing of an unborn child as a homicideat some stage of gestation without regard to live birth. The born alive rule, createdas a bright line evidentiary rule in a time of primitive medicine, became illogicalwhen medical science advanced to the point that the elements of homicide couldbe reliably demonstrated even if the child died before birth (stillborn). The bornalive rule has been discarded by an increasing number of states at some stage ofgestation. Today, more than half of the states treat the killing of an unborn humanbeing as a form of homicide, even though not born alive (stillborn), at some stageof gestation. Eleven states, including Illinois and Minnesota, define (by statute) thekilling of an unborn child as a form of homicide, regardless of the stage of pregnancy.55 One state defines (by statute) the killing of an unborn human being after49 David W. Louisell, Biology, Law and Reason: Man as Self-Creator, 16 Am. J. Juris. 1, 19-20 (1971).50 Some courts concluded that Roe prevented protection of the unborn child even outside thecontext of abortion. See e.g., Bopp & Coleson, The Right to Abortion: Anomalous, Absolute, andRipe for Reversal, 3 B.Y.U. J. Pub. L. at 256-57 (citing cases). But that erroneous understandinghas been abandoned in recent years. See e.g., People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d50 872 P.2d 591 (1994).51 See e.g., People v. Davis, 7 Cal.4th 797, 30 Cal.Rptr.2d 50 872 P.2d 591 (1994); State v.Merrill, 450 N.W.2d 318 (Minn. 1990), cert. denied sub. nom. Merrill v. Minnesota, 496 U.S. 931(1990). For various surveys of the current status of legal developments protecting the unbornchild in criminal and tort law, see Forsythe, 32 Val. U.L. Rev. at 494-501; Bopp & Coleson, TheRight to Abortion: Anomalous, Absolute, and Ripe for Reversal, 3 B.Y.U. J. Pub. L. 247-261;Horan, Forsythe & Grant, 6 St. Louis Pub. L. Rev. at 307-309.52 See generally, Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damagesfor Death of Unborn Child, 84 A.L.R.3d 411 (1978 & Supp. 1997).53 Paul B. Linton, Planned Parenthood v. Casey: The Flight from Reason in the SupremeCourt, 13 St. Louis U. Pub. L. Rev. 15, 47-48 n.141 (1993) (citing 28 states).54 Hudak v. Georgy, 634 A.2d 600, 602 (Pa. 1993).55 Ariz. Rev. Stat. 13-1103(A)(5) (West 1989 & Supp. 1995); Ill. Comp. Stat. ch. 720, 5/9-1.2,5/9-2.1, 5/9-3.2 (1994); Ind. Code Ann. 35-42-1-6 (Burns 1994) (feticide); La. Rev. Stat. Ann. tit.14, 32.5-32.8 (read in conjunction with tit. 14, 2(11) (West 1996 Supp.); Minn. Stat. Ann.609.266, 209.2661-609.2665, 609.268(1) (1987 & Supp. 1996); Mo. Rev. Stat. 1.205, 565.024(Vernon 1996 Supp.)(see State v. Knapp, 843 S.W.2d 345 (Mo. 1992); N.D. Cent. Code 12.1-17.1-01 to 12.1-17-04 (1995 Supp.); Ohio Sub. Senate Bill No. 239 (1996); PA Senate Bill No. 45(1997); S.D Cod. Laws Ann 22-17-6 (1988); 22-16-1, 22-16-1.1, 22-16-4, 22-16-15, 22-16-20, 22-16-41, read in conjunction with 22-1-2(31), 22-1-2(50A) (1996 Supp.); Utah Code Ann. 76-5-201(1995). Prosecutions under the Illinois law, without regard to time of gestation, are common.See e.g., Steven J. Stark, ‘‘Boyfriend, 21, is charged in pregnant teen’s slaying,’’ Chicago Tribune,Sunday, March 8, 1998, sec. 4, p. 3, col. 5 (defendant charged with ‘‘intentional homicideof an unborn child’’).VerDate 11-MAY-2000 07:46 May 24, 2001 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 71495.TXT HCOM2 PsN: HCOM2