Is the 'Born Alive' Rule Outdated and Indefensible?

Sydney Law Review, Vol. 28, No. 4, pp. 625-664, 2006

Sydney Law School Research Paper No. 08/84

41 Pages Posted: 31 Jul 2008  

Kristin L. Savell

The University of Sydney Law School

Date Written: July, 24 2008

Abstract

This article attempts to theorise personhood in a manner that will enable courts to express what it is about newborn infants that relevantly distinguishes them from fetuses for legal purposes. This is a difficult task if one focuses solely on the intrinsic properties of the fetus, as many philosophical and biological accounts of personhood tend to do. Further, it is a task complicated by the integration of medical technologies into the embodied experience of pregnancy and popular discourses about fetal personhood. I argue that a conception of personhood that pays due regard to the intrinsic and relational aspects of fetal being has greater potential both to explain the existing criminal law, and to guide future developments, than does a theory based solely on the intrinsic properties of the fetus. The theory developed here is consistent with retaining the 'born alive' rule. However, in the event that the courts decide to abandon the rule for the purposes of homicide, the theory also provides a basis for confining the recognition of fetal personality to the context of feticide caused by third party assaults on pregnant women.

Keywords: theorizing personhood, legal and moral personhood, born-alive rule, medical technology, feticide, abortion

JEL Classification: K10, K30, J13, K32, I18, I10

Suggested Citation

Savell, Kristin L., Is the 'Born Alive' Rule Outdated and Indefensible? (July, 24 2008). Sydney Law Review, Vol. 28, No. 4, pp. 625-664, 2006; Sydney Law School Research Paper No. 08/84. Available at SSRN: https://ssrn.com/abstract=1175726

Kristin L. Savell (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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