Not murder if mother agrees
by Professor Lauchlan Chipman
Can you be murdered before you are born? The question has been prompted by the shooting in the abdomen of an eight months pregnant woman in Adelaide last Saturday.
The woman survived, but the foetus she was carrying did not. Senior police are treating the killing of the unborn child as murder, subject to further advice from legal experts as to how it should be regarded.
If the shooting had occurred in California, there would be no doubt it was murder.
Section 187 (a) of the California Penal Code defines murder as follows:
"Murder is the Unlawful killing of a human being, or a foetus, with malice aforethought ..."
The reference to a foetus was included quite deliberately to prevent courts stalling on the question of whether or not a foetus should be regarded as a human being.
However, Part (b) of the same section, included after a 1 970 Supreme Court abortion case, adds the following qualification: "Except where done in the course of a legal abortion, or by a physician pursuant to a medical judgement or whether consented to by the mother."
In sum, the Califonia position is that if a foetus is destroyed in the course of a felony, the felon can be convicted of murder, whether or not the destruction of the foetus was actually intended. This could apply even if the felon was ignorant of the fact that the female was pregnant.
No Australian state or territory legislature has addressed the issue of defining murder in quite the way California has. Nor is there any clear precedent.
Indeed, South Australian police believe this could he the first Australian case in which a person faced a murder charge over the death of an unborn child.
There is no doubt that a person who criminally injures a pregnant woman can be charged in relation to those injuries which result in the death of the foetus.
The question is whether the foetus itself should attract additional criminal charges in its own right.
Suppose the foetus is not killed but is born with serious physical or mental defects as a result of an aggravated assault on the mother.
There are powerful moral arguments, and a number of American legal precedents, for holding the assailant liable both criminally and civilly for injuries caused to the child while it was in the mother’s womb.
The fact that last weekend’s South Australian victim was reportedly in an advanced state of pregnancy - too late for a "safe" abortion - makes it easier for us to view the foetus as the subject of moral and legal rights protected by the criminal law.
However the Californian Penal Code makes no distinction in terms of the level of development of the foetus.
If we believe the foetus deserves to be protected by the criminal law when the mother is in an advanced state of pregnancy, why not in the earlier stages as well?
A curious consequence of the California model is that the foetus is protected legally against everyone except its mother.
If our courts were to hold that a person whose felonious conduct against a pregnant woman causes the destruction of a foetus, no matter how developed the foetus, can be convicted of murder, then we would be in a similar position.
This is because of the permissive attitude taken by Australian courts to abortions performed in the interests of the mother, and with her consent.
It is odd to suggest that whether or not a murder has been committed depends upon whether a third party (neither the victim nor the perpetrator) has consented to the killing.
Yet that is the position in California.
Permissiveness and protection
It would be the position here if we were to try to combine a permissive attitude to abortion with affording the foetus the full legal protection when it is the victim of criminal conduct directed to its mother.
One compromise would be to reject the idea that the foetus could be a victim of murder, if it is at a very early stage of development.
But why should we compromise?
Once its numerical identity as a distinct human being has been determined, which is extremely early in the pregna ncy, surely it has a legitimate claim for protection against those aggravated by malice, no matter against whom the malice is directed.
Lauchlan Chipman is Foundation Professor of Philosophy and Pro-Vice Chancellor at Wollongong University