Born alive rule

The "born alive" rule is a legal principle that holds that various aspects of the criminal law, such as the statutes relating to homicide and to assault, apply only to a child that is "born alive". Recent advances in the state of medical science have led to court decisions that have overturned this rule, and in several jurisdictions feticide statutes have been explicitly framed or amended to include fetuses in utero.

The born alive rule was originally a principle at common law in England that was carried to the United States. Its original basis was that because of the (then) state of medical science and because of the rate of still births and miscarriages, it was impossible to determine whether a child would be a living being. This inability to determine whether a child in the womb was in fact alive, and would be successfully born, had ramifications with respect to the laws relating to assault and to homicide. (It is not possible to kill a child that has already died, for example.) Thus the act of a live birth was taken to be the point at which it could be reliably determined, in law, that the various laws applied.

However, advances in the state of the art in medical science, including ultrasonography, fetal heart monitoring, and fetoscopy, have since made it possible to determine that a child is alive within the womb, and as a consequence many jurisdictions, in particular in the United States, have taken steps to supplant or abolish this common law principle.

As of 2002, 23 states in the United States still employed the rule, to lesser or greater extent.

The abolition of the rule has proceeded piecemeal, from case to case and from statute to statute, rather than wholesale. One such landmark case with respect to the rule was Commonwealth vs. Cass, in the Commonwealth of Massachusetts, where the court held that the stillbirth of an eight-month-old fetus, whose mother had been injured by a motorist, constituted vehicular homicide. By a majority decision, the Supreme Court of Massachusetts held that the fetus constituted a "person" for the purposes of the Massachusetts statute relating to vehicular homicide. In the opinion of the justices, "We think that the better rule is that infliction of perinatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide.".

Several courts have held that it is not their function to revise statute law by abolishing the born alive rule, and have stated that such changes in the law should come from the legislature. In 1970 in Keeler v. Superior Court of Amador County, the California Supreme Court dismissed a murder indictment against a man who had caused the stillbirth of the child of his estranged pregnant wife, stating that "[T]he courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings [...] Whether to extend liability for murder in California is a determination solely within the province of the Legislature."

Several legislatures have, as a consequence, revised their statutes to explicitly include deaths and injuries to fetuses in utero. The general policy has been that an attacker who causes the stillbirth of a fetus should be punished for the destruction of that foetus in the same way as an attacker who attacks a person and causes their death. Some legislatures have simply expanded their existing offences to explicitly include fetuses in utero. Others have created wholly new, and separate, offences.

For examples:
 * In Minnesota, for example, vehicular homicide, death to an unborn child, and injury to an unborn child are three separate offences, under the umbrella of criminal vehicular operation.
 * In California, &sect;187 of the California Penal Code was amended to redefine murder to include the unlawful killing of a foetus, albeit that "fetus" was not defined. A landmark case in this instance that clarified this point was People v. Smith, in which the court held that the notion of viability incorporated the capability for independent existence, and that until that capability is attained by a foetus "there is only the expectancy and potentiality for human life". The court held homicide to be the destruction of a human life, and required proof that this had in fact occurred. Thus it was held that the defendant was guilty of abortion, not homicide.