The Born Alive Doctrine: A Legal Anarchronism
![handle is hein.journals/soulr2 and id is 143 raw text is: THE BORN ALIVE DOCTRINE: A LEGAL
ANACHRONISM
Louis Westerfield*
This article examines the born alive doctrine' and the
legal and ethical issues which are derived from its use. It is
argued that the born alive doctrine is a legal anachronism that
can be changed only when we recognize that infanticide and
feticide are separate crimes.' Until there is a legislative recogni-
tion of this difference, the viable unborn fetus will remain un-
protected under Louisiana Law. It has become common-place
twentieth century American logic to blame the courts for an-
achronisms which exist in our society. Whenever the courts
review age-old legal doctrines and then rule consistent with
historical interpretations, abhorrent and dated decisions re-
sult. The purpose of our courts is to interpret and apply the law
as it exists. Legislating is beyond the power of the court. To
bridle the courts with unwieldy anachronistic laws and expect
anything but dated interpretations is inconsistent thinking.
This writer proposes legislative changes that would bring the
viable fetus under the protection of Louisiana's homicide stat-
utes.
HISTORY OF THE BORN ALIVE DOCTRINE
A. Development in England
The born alive doctrine, as with many existing principles
in our law, is an inheritance from English common law. Ac-
cording to this doctrine a fetus must have been born alive be-
fore any act, causing death, can be classified as murder. By the
seventeenth century this doctrine was established law in Eng-
* B.A., Southern University, New Orleans, Louisiana, 1971; J.D. Loyola Univer-
sity, New Orleans, Louisiana, 1974; Assistant Professor of Law, Southern University
School of Law; Director of Clinical Education.
Author's note:
This article was submitted prior to the introduction of Senate Bill, Number 260
at the 1976 session of the Louisiana Legislature.
1. According to the born alive doctrine an unborn child must be born alive and
die from prenatal injuries inflicted upon it before it can be the subject of a homicide.
Winfield, The Unborn Child, 8 CAMB. L.J. 76, 78 (1944) [hereinafter cited as Win-
field].
2. Feticide is the destruction of the life of the fetus, whereas, infanticide is the
killing of a newborn child. Gilpin v. Gilpin, 197 Misc. 319, 94 N.Y.S. 2d 706, 708 (1950).](ViewImageLocal?handle=hein.journals/soulr2&div=14&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Born Alive Doctrine: A Legal Anarchronism
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most