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The Born Alive Act

Posted by on Dec. 14, 2009 at 4:44 PM
  • 22 Replies

If someone knows the facts on this, please let me know.

So, the born alive act ensures that babies born alive after botched abortions must recieve medical care to keep them alive.  Keep in mind, those that usually went in for this kind of abortion were doing so because of some risk factors on the baby.  I am not saying that shady practices did not take place, but for the most part those that primarilly did it were doing so because the baby was terminal or so horribly ill that quality of life would have been nada.

The act doesn't take into consideration how far along in gestation the baby is.  My understanding of this act is that even if born at 15, 16 weeks, the doctors have to try to keep "it" alive.

So, why is it that doctors have to fight to keep alive a 16 week fetus born from a botched abortion, but a baby born prematurely at 21 weeks cannot recieve that same assistance?  Why can doctors consider keeping a healthy 21 weeker alive as "futile", but they have to fight tooth and nail to keep alive a baby born at 16 weeks who may or may not have other issues that led to the abortion in the first place?

Anyone know why or know more about the act itself that can explain this discrepency?

(and before people cite that case about the 21 weeker that was kept alive.....it was only done because the mother lied about the gestation)

by on Dec. 14, 2009 at 4:44 PM
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Replies (1-10):
CrewsMaMa
by on Dec. 14, 2009 at 4:46 PM

I have no idea but id like to know.  So BUMP!

Nursing Bras at Nurtured Family
randi1978
by on Dec. 14, 2009 at 4:48 PM

No one?

Curious minds would like to know.

AlyssaRob1416
by on Dec. 14, 2009 at 4:49 PM

You can't keep a 15 weeker alive. You can't keep a 21 weeker alive either. They are too tiny to be intubated. There isn't an ET tube tiny enough to fit in that tiny airway.

ShadowLark
by on Dec. 14, 2009 at 4:51 PM

They would NOT be able to keep a 15 or 16 weeker alive.  It's physically impossible - the baby will never take a breath.

That said, I agree with you about the 21 weeker.  I have placenta previa.  I had some bleeding already that got me diagnosed (I'm at 12 weeks 1 day today).  If my baby were to be born at 22 weeks, the dr said the baby would not be viable - they won't help it.  23 and a half weeks, yeah, they'll try.  But seriously?  I'm scared to death!  And so far, my baby is perfectly healthy!  He might actually be viable at 22 weeks.  How would they KNOW without TRYING?

CrewsMaMa
by on Dec. 14, 2009 at 4:51 PM


Quoting AlyssaRob1416:

You can't keep a 15 weeker alive. You can't keep a 21 weeker alive either. They are too tiny to be intubated. There isn't an ET tube tiny enough to fit in that tiny airway.


I dont think it says you can I think it says by law the doctor has to try.

Nursing Bras at Nurtured Family
smichellem
by on Dec. 14, 2009 at 4:52 PM

I am not exactly aware of what you are talking about. I haven't read the Born alive Act and I haven't heard that it's okay to let a 21 weeker die while legally being forced to keep a 16 weeker alive. I really don't know what you are talking about. Can't wait to find out though I am sure someone knows.

Anyway, I would have to say that any laws regarding abortions tend to hold a lot problems. Personally I don't understand how we're going to force docs to keep baby's alive when their intent was to kill that baby. It's quiet a moral dilemma we're finding ourselves in now days.

ShadowLark
by on Dec. 14, 2009 at 4:52 PM


Quoting AlyssaRob1416:

You can't keep a 15 weeker alive. You can't keep a 21 weeker alive either. They are too tiny to be intubated. There isn't an ET tube tiny enough to fit in that tiny airway.

Well, the 15 weeker wouldn't have working lungs anyway, so moot point.  But what about a 22 weeker?

mamacita4two
by on Dec. 14, 2009 at 4:52 PM

History

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 was alive at any given time prior to birth. 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.[1][2]

[edit] Today

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.[1]


Fetal homicide laws in the United States      "Homicide" or "murder".      Other crime against fetus.      Depends on age of fetus.      Assaulting mother.

As of 2002, 23 states in the United States still employed the rule, to lesser or greater extent.[2]

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.[3]

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.[3][4]

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 fetus 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.[3]

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.[5]
  • In California, §187 of the California Penal Code was amended to redefine murder to include the unlawful killing of a fetus, 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 fetus "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.[3]

[edit] See also



http://en.wikipedia.org/wiki/Born_alive_rule



randi1978
by on Dec. 14, 2009 at 4:52 PM

But the born alive act states that babies born alive after botched abortions must be given medical assistance in order to keep them alive.  That's what I am asking.  From my understanding, there is no discrepency on gestation stated in the act.

I understand that it is futile to attempt to keep both alive, but why should doctors be forced to keep one alive and not the other?

Quoting AlyssaRob1416:

You can't keep a 15 weeker alive. You can't keep a 21 weeker alive either. They are too tiny to be intubated. There isn't an ET tube tiny enough to fit in that tiny airway.


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