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16 St. Thomas L. Rev. 207 (2003-2004)
Prenatal Tort Law and the Personhood of the Unborn Child: A Separate Legal Existence

handle is hein.journals/stlr16 and id is 221 raw text is: PRENATAL TORT LAW AND THE PERSONHOOD OF
If men strive, and hurt a woman with child, so that her fruit depart
from her, and yet no mischief follow: he shall be surely punished,
according as the woman's husband will lay upon him; and he shall pay as
the judges determine.1
[T]he most spectacular abrupt reversal of a well settled rule in the
whole history of the law of torts.2
* J.D. (1991) South Texas College of Law; Member of the Minnesota Bar; B.B.A. University of
Wisconsin-Madison with Honors in Actuarial Science (1979); Member of Minnesota Lawyers for
1. Exodus 21:22 (King James). This passage continues through Verse 25 as follows: And
if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for
hand, foot for foot, burning for burning, wound for wound, stripe for stripe. For an exegesis of
the prenatal tort and wrongful death protections afforded the unborn child by this passage, and
how such influenced the common law, see Mark S. Scott, Note, Quickening in the Common Law:
The Legal Precedent Roe Attempted and Failed to Use, 1 MICH. L. & POLICY REV. 199 (1996).
In addition to the Mosaic Law, the ancient law of England also provided recompense for prenatal
torts and wrongful death. As reported by Dr. Harold D. Kletschka:
King Alfred reigned as King of Wessex from 871 A. D.- 901 A. D.... The following
excerpt from his laws is pertinent: Alfred's Dooms 18. If anyone, in strife [earnest
effort or endeavor], hurt a breeding woman, let him make 'bot' [damages] for the hurt,
as the judges shall prescribe to him .... Of Slaying A Child-bearing Woman 9. If a
man kill a woman with her child, while the child is in her, let him pay for the woman
her full 'wer-gild,' [the price at which every man was valued, according to his degree,
which in the event of his being slain was to be paid to his relatives, or to his 'gild-
brethren,' by the homicide or his friends, and which he himself condemned to pay, if
proved guilty of certain offences specified in the laws] and pay for the child half a
'wer-gild,' according to the 'wer' or the father's kin. King Henry I ruled from 1100
to 1135 A. D .... [He] enacted the following laws: Sec. 14. If a pregnant woman is
killed, and the child in her lives, for each on the full penalty-money is to be paid. If
[the child] is not yet alive, half the penalty shall be dismissed for the parents on the
father's side.
(Alethos Press LLC 2002-2003) (on file with author). See also Dietrich v. Inhabitants of
Northampton, 138 Mass. 14, 15 (Mass. 1884) (Some ancient books seem to have allowed the
mother an appeal for the loss of her child by a trespass upon her person).
2. W. PROSSER, HANDBOOK ON THE LAW OF TORTS 336 (4th ed. 1971) [hereinafter
PROSSER 4th ed.].

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