Brain Birth: A Proposal for Defining When a Fetus Is Entitled to Human Life Status
![handle is hein.journals/scal59 and id is 1077 raw text is: NOTES
Brain Birth: A Proposal for Defining
When a Fetus Is Entitled to Human
Life Status
A dozen years have passed since the Supreme Court's landmark de-
cision in Roe v. Wade.' Although the Court has recently reaffirmed Roe
in City of Akron,2 the justifications which made the 1973 decision so
compelling no longer support the divisions of fetal development which
the Court incorporated into law. As Justice O'Connor suggested in her
dissent in City of Akron, [t]he Roe framework. . . is clearly on a colli-
sion course with itself.'3 Subsequent advancements in medical technol-
ogy have made the rationale and holding of Roe suspect. The time has
arrived, therefore, to redefine the point in gestational development at
which a fetus may be said to be a person for purposes of state
intervention.
This Note proposes to place the beginning of human life, for pur-
poses of state intervention, at that stage of fetal development when neo-
cortical brain activity begins. Intelligence is the characteristic which
makes the human species unique from all other creatures, and it is neo-
cortical activity that endows human beings with higher intellectual func-
tions. The human neocortex begins producing electroencephalograph
(EEG) waves between the twenty-second and the twenty-fourth weeks of
pregnancy.' This Note, therefore, argues that when a fetus reaches that
1. 410 U.S. 113 (1973).
2. City of Akron v. Akron Center for Reproduction Health, Inc., 462 U.S. 416 (1983).
3. Id. at 458.
4. J. HUGHES, EEG IN CLINICAL PRACTICE 69-70 (1982) ([tjhe earliest EEG activity ap-
pears at approximately 22 to 23 weeks of gestational age. . . . The activity at that time is not
continuous, but consists of short bursts interspersed against a flat or quiescent background.); see
also D. SCOTT, UNDERSTANDING EEG: AN INTRODUCTION TO ELECTROENCEPHALOGRAPHY 107
(1976) (25 weeks); Dreyfus-Brisac, The Electroencephalogram of the Premature Infant, 3 WORLD
NEUROLOGY 5 (1962) (24 weeks); Ellingson, Studies of the Electrical Activity of the Developing
Human Brain, 9 PROGRESS BRAIN RESEARCH 26, 27 (1964) (24 weeks).
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Brain Birth: A Proposal for Defining When a Fetus Is Entitled to Human Life Status
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