Born Alive Rule - History

History

The born alive rule was originally a principle at common law in England that was carried to the United States and other former colonies of the British Empire. First formulated by William Staunford, it was later set down by Edward Coke in his Institutes of the Laws of England. It follows the language used for cases of murder in English law, identifying three salient characteristics.

1. a reasonable creature, 2. in rerum natura (in natural being); and 3. in the King's peace.

Coke says:

"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe, this is great misprision, and no murder; but if he childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.

The term "reasonable creature" echoes the language of an influential strand Catholic doctrine on the nature of the soul and the Beginning of human personhood which generally adopted Aristotle in holding that it is the "rational soul" that infuses the fetus with "human beingness". There was disagreement as to whether this occurred at the moment of conception, or at the moment of quickening, as Aristotle had held. As for rerum natura, William Staunford had explained "the thing killed must be in part of the world of physical beings (in rerum natura). This has been interpreted as meaning completely expelled from the womb. Finally, the "thing killed" must be in the King's peace, i.e. in a situation where the protection of the King's peace applied. An outlaw, for instance, was not in the King's peace, and not subject to protection of the law.

The designation "misprision, and no murder", can be traced to the "Leges Henrici Primi" of 1115, which designated abortion "quasi homicide". Here, we find the penalties for abortion were varying lengths of penance, indicating it was dealt with by ecclesiastical courts, while homicide, being a breach of the King's peace, was dealt with in secular courts. Penalties for abortion varied depending on whether the fetus was formed or unformed, that is before or after quickening, and were only imposed on women who had aborted the product of "fornication" (illicit sex), a distinction previously made by the Venerable Bede.

The personhood status of the fetus once born is a matter of speculation, as children had little recognition at law prior to the Offences against the Person Act 1828, and today are still not considered full persons until they reach the age of majority and are deemed capable of entering into legally binding contracts. As the Eliza Armstrong case shows, however, it was still legal for a father to sell his child as late as 1885, long after the slave trade had been abolished in England.

In the nineteenth century, some began to argue for legal recognition of the moment of conception as the beginning of a human being, basing their argument on growing awareness of the processes of pregnancy and fetal development. They succeeded in drafting laws which criminalized abortion in all forms and made it punishable in secular courts.