of embryology, American courts chose, uniformly, to treat the unborn child as a human being. A posthumous child is able to take under a will description be queathing property to those "living at my (testator's) decease." The unborn child can also take, under a will, as a tenant in common with its own mother." It can have a sale of land set aside where the sale involves descendant land a portion of which is held to vest in the unborn child prior to its birth.

The suggestion that the unborn child is a legal nonentity was clearly rejected in Industrial Trust v. Wilson. Here the court held that a posthumons child $ 61 R.I. 169, 200 A. 467 (1938).

was to begin sharing in the proceeds of a trust at the date of her father's death rather than upon the date of her subsequent birth. Thus, the child was an actual income recipient prior to the event of her birth.

The state of the law in American courts is fairly well summed up in In re Holthausen's Will, where a New York court states. "It has been the uniform and unvarying decision of all common law courts in respect of estate matters for at least the past two hundred years that a child en ventre sa mere is 'born' and 'alive' for all purposes for his benefit.""

10

The requirement, stated in certain cases, that the courts recognize prenatal existence only for the benefit of a child subsequently born alive, has been suggested by some to indicate that the courts have merely developed a rule of construction and that these cases are no authority on the question of whether or not the unborn child does, in fact, have any legal rights." But when a lawsuit is commenced on behalf of an unborn child on the theory that property rights accrued to him while he is still in gestation, almost inevitably that child will have proceeded to term and been successfully born or will have miscarried or been stillborn before the case which decides his rights is adjudicated and the opinion written. Thus at the time the court speaks, the child, by his representative, is actually before the court requesting some kind of relief. Similarly, where a lawsuit is based on accrual of property rights to a child prior to his birth, but is commenced after his birth, he is likewise before the court when the opinion is written. Under such circumstances it is understandable, but really gratuitous and superfluous, for the court to observe that the child must have been born alive. The observation is only dictum; it does not necessarily require a different result in those cases where the observation is inappropriate.

The property rule which recognizes human life in the unborn child prevails whether or not it inures to his personal benefit, and even where it works a detriment to him. Thus, in Barnett v. Pinkston 12 a child born two months after the death of his father was held to be a "living child" at the death of his father. The child lived only several hours, leaving its mother as its sole heir. She died a few days later. The remainder that had vested in the child was held to have passed to her and through her to her heirs. The court's recognition that a child en ventre sa mere is a child in esse, thus produced no personal benefit to the child. In In re Sankey's Estate 13 a child conceived but not born was held bound by a decree entered against the living heirs.

5 Hall v. Hancock, 32 Mass. (15 Pick.) 255 (1834). Chief Justice Shaw quoted with approval the language of the Lord Chancellor in Wallis v. Hodson, quoted in parts in supra n. 3. Accord. Barnett v. Pinkston, 238 Ala. 327. 191 So. 371 (1939): Coirles T. Cowles, 56 Conn. 240. 13 A. 414 (1887); McLain v. Howald, 120 Mich. 274. 79 N.W. 182 (1899). In Hall the court also explicitly negates the applicability of the "quickness" requirement found in certain of the criminal law cases. to cases involving issues of descent and distribution. See the section on The Fetus in the Criminal Law infra. this essay. Cal. Prob. Code & 250 (West, 1956) provides: "A posthumous child is considered as living at the death of the parent." Section 255. amended as recently as 1961, provides that an illegitimate child is the heir of his mother, whether the child is "born or conceived." Rigas v. McCarty. 86 Ind. 352 (1882).

Deal v. Sexton, 144 N.C. 110. 56 S.E. 691 (1907). The court recognized that constitutional rights of the unborn child are at stake when it stated: "If we hold, as we must. that the inheritance vested immediately in the plaintiff, while en ventre sa mere, upon the death of the father, the conclusion must follow that such inheritance ought not to be divested. [A] person must have an opportunity of being heard before a court can deprive him of his right, and .. an unborn child, not having been made a party, can recover from those claiming his title." Id. at 110-11, 56 S.E. at 692.

175 Misc. 1022, 1024, 26 N.Y.S.2d 140, 143 (Sur. Ct. 1941).

10 In re Well's Will, 129 Misc. 447, 221 N.Y.S. 714 (Sur. Ct. 1927). The court states: "It is well settled that a child en ventre sa mere, which is subsequently born alive and capable of living. is considered a child living, so as to take a beneficial interest in a bequest or devise when the description is 'child living.'" Id. at 451, 221 N.Y.S. at 719 (emphasis added).

11 See In re Scanelli, 208 Misc. 804, 142 N.Y.S.2d 411 (Sur. Ct. 1955).

12 238 Ala. 327, 191 So. 371 (1939).

13 199 Cal. 391, 249 P. 517 (1926). See also Orange v. State Farm Mut. Auto. Ins. Co., 443 S.W. 2d 650 (Ky. Ct. App. 1969) (a viable unborn child is a legal person with a sepa rate existence of its own so that he is a member of a class excluded from coverage by a "family" or "household" exclusion clause of an automobile liability policy).

These property cases have established this proposition: the ordinary person when he uses "children" in a will means to designate by the term "children" those who are conceived but not yet out of the womb. This interpretation has, to our knowledge, never been criticized as fanciful or arbitrary or imposed by a court in the service of some theological scheme. It has been generally accepted as a fair interpretation of the ordinary use of language and of the ordinary person's notion of who are indeed "children."

The Fetus in the Criminal Law

The first reference to abortion in English criminal law occurs in Bracton. He transposed the canon Sicut ex to England by saying that aborting a woman by blow or poison is homicide if the embryo "were formed and especially if it were ensouled." This language was repeated early in the seventeenth century by Coke in a passage which begins, "If a woman be quick with child . . . this a great misprision and so murder." Later in the seventeenth century "quick" is clearly identified with "developed pregnacy." Hale says, "If a woman be quick or great with child . . . it is not murder or manslaughter by the law of England, because it is not yet in rerum natura, tho it be a great crime." 16 The statutory law, 43 Geo. III c. 58, which became effective in 1803, made it a felony punishable by death to administer poison "to cause and procure the miscarriage of any woman then quick with child," and a felony punishable by fine, imprisonment, pillory, whipping, or transportation to attempt by drug or instrument to procure the miscarriage of any woman "not being or not being proved to be quick with child." In Rex v. Phillips in 1812, the doctors disagreed as to when a fetus could be said to be quick, and the court ruled that it was quick when the mother felt the fetus move.' In later nineteenth-century America, "quick" was defined in the same way, despite doubts as to the medical significance of the term and a tendency to interpret abortion statutes as applicable to any stage of the pregnancy.18

17

20

Medical writers were critical of the retention of the distinction by the courts. Thus, criticizing the increase of abortion "especially among the higher classes,” Isaac M. Quimby in the Journal of the American Medical Association for 1887 wrote, "This fallacious idea that there is no life until quickening takes place has been the foundation of, and formed the basis of, and has been the excuse to ease or appease the guilty conscience which has led to the destruction of thousands of human lives." " Several times in the course of the nineteenth century the House of Delegates of the American Medical Association called on the states to reform their laws and to prevent abortion. In 1859 Horatio R. Storer of Boston reported for the Committee on Criminal Abortion, and obtained unanimous adoption of a resolution condemning the act of procuring abortion at every period of gestation except as necessary for preserving the life of either mother or child. The reason for the resolution was stated to be the increasing frequency "of such unwarrantable destruction of human life." This nineteenth-century history indicates both that the medical objection to abortion was the physician's defense of the human life of the fetus and that the medical objection to existing law was the medical unsoundness of the attempted distinctions earlier made on the basis of the age of the fetus.

Even at common law, some nineteenth-century courts refused to deny protection to the unborn child during the stage of development prior to quickening and held that abortion was just as illegal at that time as at a later period."

14 Henry de Bracton, De legibus et consuetudinibus Angliae, 3.2.4 (London, 1640).

15 Edward Coke. The Third Part of the Institutes of the Laws of England (London, Printed for E. and R. Brooke, 1797), sec. 50.

16 Matthew Hale. The History of the Pleas of the Crown, 1st American ed. vol. 1. Notes and references to later cases by W. A. Stokes and E. Ingersoll. (Philadelphia: Robert H. Small. 1847), p. 432.

17 William O. Russell, A Treatise on Crimes and Misdemeanors, vol. 1 (London: J. Butterworth and son. 1819), p. 797.

19 Joel P. Bishop. Commentaries on the Law of Statutory Crimes, 2nd ed. (Boston: Little, Brown, 1883). sec. 746.

19 "Introduction to Medical Jurisprudence." 9 Journal of the American Medical Association (August 6, 1887): 164; see also N. C. Markham, "Foeticide and Its Prevention," ibid., 11 December 8. 1888. 805.

20 American Medical Association, 1846-1958 Digest of Official Actions, ed. F. J. L. Blasingame (1959). p. 66.

21 American Medical Association, Minutes of the Annual Meeting. 1859, 10 The American Medical Gazette (1859), 409. “Abortion" to save the life of the child meant surgical removal of the child in a premature delivery.

Mills v. Commonwealth, 13 Pa. 630, aff'g 13 Pa. 633 (1850).

Other courts expressed dissatisfaction with the common law requirement but stated that it was up to the legisuature to abolish the "quickening" element." As the legislatures of the various states began to codify existing law during the nineteenth century, the anticipated change in the abortion laws occurred. The quickening requirement often was abolished" so that the fetus was protected from the moment of conception throughout the entire period of gestation. Some jurisdictions extended protection by the means of a feticide statute: which made destruction of the fetus at any stage of development a criminal act and in some cases, where the fetus was "quick," made such destruction a capital offense." States which prohibited abortion by specific statutes aimed at feticide abolished "quickening" an an element of the crime, while those states which utilized regular homicide (manslaughter) statutes generally retained that element. But there was a minority view under which a conviction of manslaughter could be sustained for destruction of the fetus at any stage of gestation. The trend, however, was to protect the fetus by specific antiabortion laws rather than by application of homicide statutes, and, with the former, distinctions based on the various stages of fetal development were not generally made.

30

Historically the common law had recognized the inviolability of the unborn child by providing for suspension of execution of pregnant women under death sentence, at least when "quick." This solicitude continues in modern statutes without regard to the stage of pregnancy. Statutes imposing criminal sanctions protective of children's right of support from their parents also apply to the unborn child. These statutes also apply to the child at any stage of the pregnancy.*

31

In summary, starting from a misinterpretation of the canon law and treating quickening as a decisive moment to confer protection, English and Ameri can criminal law in the nineteenth century moved to a protection of the fetus throughout his life in the womb. Impetus for change came from informed medical opinion. The purpose of the change was not to protect the life of the mother but the life of the fetus. The response of the legislators and then of the courts to the new medical data was a response to data which showed the unreality of distinctions based on differences in the stage of fetal development.

The Fetus in the Law of Torts

Perhaps no other area of the law has undergone such a dramatic reversal as that of the law of torts in recognizing the legal existence of an unborn child.* Until World War II most American courts denied recovery in tort to the child who had been harmed by negligent injury to his mother while she carried him. This denial was predicated upon several factors, including the difficulty of proving causation in view of the then deficient state of medical knowledge. The primary reason for denying recovery, however, was reliance upon the statement of Justice Holmes in Dietrich v. Northampton, that "the unborn child was a part of the mother at the time of the injury." Since the rejection of this view

34

33

Mitchell v. Commonwealth, 78 Ky. 204 (1879). The court stated: "That the child shall be considered in existence from the moment of conception for the protection of its rights of property, and yet not in existence, until four or five months after the inception of its being, to the extent that it is a crime to destroy it, presents an anomaly in the law that ought to be provided against by the law-making department of the government." Id. at 209-10.

24 See, e.g., Cal. Penal Code § 274 (West 1954).

25 Hans v. State, 147 Neb. 67. 22 N.W.2d 385 (1946).

2 See Passley v. State, 194 Ga. 327, 21 S.E.2d 230 (1942).

Thus Wisconsin held that where the death of the mother resulted from an illegal abortion it was immaterial whether the fetus had quickened, but where the prosecution was for the death of the child he must have quickened. State v. Walters, 199 Wis. 68, 225 N.W. 167 (1929); State v. Dickinson, 41 Wis. 299 (1878).

See State v. Atwood, 54 Ore. 526, 102 P. 295 (1909).

21 W. Blackstone, Commentaries *456 (ed. W. Jones at 651. 1916); M. Hale, Pleas of the Crown vol. 2, pp. 413-14 (1st Am. ed. at 412-13. [1847]). See generally Geoffrey Hazard & David Louisell. "Death, the State, and the Insane: Stay of Execution," 9 University of California at Los Angeles Law Review (1962), 381.

3 E.g., Cal. Penal Code §§ 3705-06 (West 1954).

31 E.g., id. § 270 (West Supp. 1968): “A child conceived but not yet born is to be deemed an existing person insofar as this section [child neglect] is concerned."

32 See W. Prosser, Handbook of the Law of Torts § 56 (3rd ed. 1964).

33 138 Mass. 14, 17 (1884).

34 Compare with the statement made by Justice Holmes, the holding which appears to have been the settled rule, in Prescott v. Robinson, 74 N.H. 460, 69 A. 522 (1908), that the mother could not recover on her own behalf for injuries sustained by her unborn child. The mother had, unsuccessfully, claimed that the unborn child was a part of her.

in 1946, in the case of Bonbrest v. Kotz," the law has proceeded apace to recognize the unborn child as a human being in this area as it had in others.

36

Many of the early cases required that the unborn child have reached the stage of viability at the time the injuries were inflicted in order to maintain an action. The modern trend, however, has been to reject viability as a criterion and to allow recovery whenever the injury was received, provided that the elements of causation are properly established." Where the child has died due to injuries received while in the womb, the cases have allowed recovery based on wrongful death actions where the fetus has reached to stage of viability. At first, recovery was limited to those cases in which the child was born alive and then died due to injuries received prior to birth. But perhaps the most significant cases for establishing the legal existence of a child prior to birth have been those very modern decisions which allow the parents, or survivors, to maintain such an action where the child is stillborn. Thus, the unborn child, to whom live birth never comes, is held to be a "person" who can be the subject of an action for damages for his death.

38

41

In Porter v. Lassiter," such an action was allowed even where the child had not reached the stage of viability at the time the fatal injuries were received. In 1967 the Supreme Court of Massachusetts " allowed recovery where the child had not reached that stage and died a few hours after birth. The court, after noting that it had allowed recovery for wrongful death following prenatal injury to a viable child, said:

2565 F. Supp. 138 (D.D.C. 1946).

Id.; Scott v. McPheeters, 33 Cal. App. 2d 629, 92 P.2d 678 (1939) (Cal. Civ. Code § 29 [West 1954] expressly provides that the fetus is to be deemed an existing person); Tursi v. New England Windsor Co., 19 Conn. Supp. 242, 111 A.2d 14 (1955); Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951); Keyes v. Constr. Serv., Inc., 340 Mass. 633, 165 N.E.2d 912 (1960); Williams v. Marion Rapid Transit, Inc., 152 Ohio 114, 87 N.E.2d 334 (1949); Mallison v. Pomeroy, 205 Ore. 690, 291 P.2d 225 (1955); Seattle-First Nat'l Bank v. Rankin, 59 Wash. 2d 288, 367 P.2d 835 (1962).

37 Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956); Daley v. Meier, 33 Ill. App. 2d 218, 178 N.E.2d 691 (1961); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958); Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696 (1953); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Sylvia v. Gobeille, 220 A.2d 222, 223–24 (R.I. 1966), where the court said: "While we could, as has sometimes been done elsewhere, justify our rejection of the viability concept on the medical fact that a fetus becomes a living human being from the moment of conception, we do so not on the authority of the biologist but because we are unable logically to conclude that a claim for an injury inflicted prior to viability is any less meritorious than one sustained after" W. Prosser, supra note 32, § 56. "Viability" of a fetus is not a constant but depends on the anatomical and functional development of the particular baby. J. Morison, Foetal and Neonatal Pathology 99-100 (1963). The weight and length of the fetus are better guides than age to the state of fetal development, and weight and length vary with the individual, Peter Gruenwald, "Growth of the Human Fetus," 94 American Journal of Obstetrics & Gynecology (1966). 1112.

38 Worgan v. Greggo & Ferrara, Inc., 50 Del. 258, 128 A.2d 557 (1956) (not certain whether child was born alive or was stillborn); Steggall v. Morris, 363 Mo. 1224, 258 S. W. 2d 577 (1953); Cooper v. Blanck, 39 So.2d 352 (La. Ct. App. 1923); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); Shousha v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962); Leal v. C. C. Pitts Sand & Gravel, Inc., 419 S.W.2d 820 (Tex. 1967) (child lived two days; question of liability when stillborn left open).

The jurisdictions which persist in the notion that recovery in tort for injury to the fetus is conditioned on the child being born alive, do so for policy reasons: difficulty of proof, danger of double recovery if the mother also sues for miscarriage, or the peculiarity of language of the wrongful death statute involved. See generally W. Prosser, supra n. 32 & 56. The requirement of survivorship as a condition to redress tortions injury does not detract from jural recognition that a right came into existence at the time of the injury. Survivorship may be a condition precedent to an enforcement, of a right, but hardly confers retroactively rights not in existence at the time of the injury. The common law was replete with instances of torts not remediable because the victim died before enforcement of his rights. "If it were conceded that killing the plaintiff was a tort toward him, he was none the less dead, and the tort died with him." Id. § 121, at 923. Who would have contended that the law did not recognize a tort in trespass, for assault and battery, or for medical malpractice simply because none of the actions survived if the victim died?

30 Gorke v. Le Clerc, 23 Conn. Supp. 256, 181 A.2d 448 (1962); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky. 1955): State v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Panagopoulous v. Martin 295 F. Supp. 220 (D.C. W.Va. 1969); White v. Yup, 458 J. 2d 617 (Nev. 1969). See also Wendt v. Lillo, 182 F. Supp. 56 (N.D. Iowa, 1960); Valence v. Louisiana Power & Light Co., 50 So. 2d 847 (La. Ct. App. 1951); contra, Estate of Powers v. City of Troy. 380 Mich. 160. 156 N.W.2d 530 (1968) and Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E. 2d 901, 301 N.Y.S. 2d 65 (1969) (strictly limited meaning of "person" under wrongful death statute): Padillow v. Elrod, 424 P.2d 16 (Okla. 1967), criticized in Note. "Torts: Prenatal InjuriesViability and Live Birth." 21 Oklahoma Law Review (1968), 114.

40 91 Ga. App. 712, 87 S.E.2d 100 (1955).

41 Torigian v. Watertown News Co., 352 Mass. 446. 335 N.E.2d 926 (1967).

In the case at bar, where the fetus was not viable, we must decide whether there is a sound distinction from the situation where the fetus is viable ...

In the vast majority of cases where the present issue has arisen, recovery has been allowed... To the extent that the views of textwriters and legal commentators have come to our attention, they are unanimously of the view that nonviability of a fetus should not bar recovery

We are not impressed with the soundness of the arguments against recovery [alleged lack of precedents, the avoidance of speculation or conjecture as to causation, and the encouragement of fictitious claims]. They should not prevail against logic and justice. We hold that the plaintiff's intestate was a "person" within the meaning of [the wrongful death statute of Massachusetts]."

One could predict, confidently so before the current pressures for abortion liberalization," that actions for the wrongful death of unborn children generally would be allowed without regard to the stage of fetal development at the time of death.

46

Other areas of tort law have also recognized the civil rights of the unborn child. Thus, an unborn child has been held to be a "child" or "other person" allowing him to bring an action for the death of his father where the death occurred prior to the child's birth." The fetus has also been held to be an "existing person" "" and a "surviving child" under various wrongful death statutes. In this development of tort law the courts overcame cultural lag to get abreast of scientific realities. As put in Scott v. McPheeters: "The respondent asserts that the provisions of section 29 of the [California] Civil Code are based on a fiction of law to the effect that an unborn child is a human being separate and distinct from its mother. We think that assumption of our statute is not a fiction, but upon the contrary that it is an established and recognized fact by science and by everyone of understanding." "

The tort law is not simply a guide to the status of the fetus in one branch of the law. It is a reflection of how judges responding to changing medical knowledge and attempting to do justice have come to regard the being in the womb. In the words of Dean Prosser summarizing the revolution in tort law, "All writers who have discussed the problem have joined in condemning the old rule and in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother." We shall see if the unborn child can become less than a person if he stands in the path, not of a negligent motorist, but of a surgeon who would take his life.

II. THE CONSTITUTIONALITY OF REGULATING ABORTION

Since in a variety of ways the state recognizes the fetus as a center of legal rights, it would seem that the state could protect this locus of rights, this legal personality, against destruction unless there is some compelling reason why such protection should not be given. The prohibition of abortion, as a constitutional matter, thus becomes a question of weighing the life of the fetus against other interests that are asserted to require the taking of this life.

The Life and Health of the Mother

No American state has ever prohibited abortion. The states have always regulated abortion because they have always recognized that where a choice must be made between the life of the mother and the life of the child, it falls within the general rationale of self-defense if the mother seeks an abortion to preserve her own life. The typical state statute has permitted an abortion if "necessary to preserve" the mother's life, and the state has typically had the burden of proof that an abortion was not performed to save the mother's life or that the operating physician did not in good faith believe the abortion was necessary."

49

Throughout the country, standards set by judicial interpretation of the statute have given a latitude to licensed practitioners operating within hospitals to exercise their professional judgment as to when an abortion was necessary to pre

42 Id. at 448, 225 N.E.2d 927.

43 Cf. Estate of Powers v. City of Troy, 380 Mich. 160, 156 N.W.2d 530 (1968).

44 La Blue v. Speker, 358 Mich. 558, 100 N.W.2d 445 (1960).

45 Herndon v. St. Louis & S.F.R.R., 37 Okla. 256. 128 P. 727 (1912).

46 Teras & P. Ry. v. Robertson, 82 Tex. 657. 17 S.W. 1041 (1891).

47 33 Cal. App. 2d 629, 634. 92 P. 2d 678, 681 (1939).

45 Prosser, supra n 32 at 355.

4 E.g., People v. Gallardo. 41 Cal. 2d 57, 257 P. 2d (1953); Commonwealth v. Brunelle, 341 Mass. 675, 171 N.E. 2d 850 (1961).