Re: Is a Fetus a Person? /Bill [was L&I Any ideas or help would be appreciated]

[Linda D. Misek-Falkoff, Ph.D., J.D.]

"Linda D. Misek-Falkoff, Ph.D., J.D." <[EMAIL PROTECTED]> writes:


Hi Bill - agreed, in the civil case the fetus would simply have
prospective standing, it seems: future access to relief, once being born
But the criminal code wouldn't even give *that* much.  Based on argments
from "majority" supportin personhood, and that being calculated from
first breath of life (and ona case we would like yet to read), the crim
case gives it seems no prospective or future 'standing' to the "child"
as an agrieved, if its self's system is insulted. 

So contrasted with civil code where high up in the hierarchy of codes,
and mirroring the US constitution, the fetus basically has life,
liberty, and property interest albeit subject to birth.. the crim law
falls short of this (entitlement?).

Now here's a stinger: on the surface, the crim law is interested in harm
to the mother; the civil code is broad but also includes the fetus in
the range of persons which the law accepts as possibly harmed, and with
a cause of action at law.

But how can one argue the 'civil code' applies to the 'crim case'?
First, if clearly the Civil is superordinate (umbrella language) ranging
over citizens, should it not do so in a crim context? Or, should the
crim context take that away? Secondly, it the mother (or father!) in a
crim context is assaulted by the other parent, does this not colorably
apply to insult to the fetus? If so, the subject of the harm is not only
the hramed parent  but the dependent child.  

Next we have a procedural question: didn't the lawyers bring this up?
Does the court have an obligation to raise questions like this or
introduce references? 

There are a lot of technical and basically humanistic questions here,
and all posts will help... glad you chose to post, and please feel free
to correct or amend the above.  :) Best, LDMF.

--------------------William J. Foristal wrote:------------------------

> >43.  Besides the personal rights mentioned or recognized in the
> >Government Code, every person has, subject to the qualifications and
> >restrictions provided by law, the right of protection from bodily
> >restraint or harm, from personal insult, from defamation, and from
> >injury to his personal relations.
> >
> >
> >
> >43.1.  A child conceived, but not yet born, is deemed an existing
> >person, so far as necessary for the child's interests in the event of
> >the child's subsequent birth.
> 
> HI Sue,
> 
> Ooops, instead of helping I think I see an argument that would go against
> you here. It seems to me that 43.1 covers situations where something
> occurs during a pregnancy that affects the child who is "subsequently
> born".  This would enable legal action, for example, against a person who
> caused the injury or damage.  An example of this would be a car accident
> where a drunk driver injured a pregnant woman and her child is born with
> serious defects caused by the accident.  Or someone who assaulted a
> pregnant woman and caused defects in the child that was subsequently
> born.
> 
> Ironically, the law does not specify the rights of a fetus who is NOT
> "subsequently born" but dies as a result of the criminal action.  Given
> the legality of abortion, it seems a defense attorney could argue that
> the fetus had no rights at the time of its death.  That, in order to have
> any rights with respect to the assault, the fetus would have had to
> survived long enough to be "subsequently born."
> 
> But then again, I'm not a lawyer, so don't let me rain on your parade
> here. :)
> 
> Bill
> 
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