Rethinking the English "Born Alive Rule": Comparative and Doctrinal Study

Should a person be criminally responsible for the death of a newborn, if this death is the result of injuries inflicted, by this person, on the fetus in utero? If affirmative, which offense should this person be accountable for? This article deals with these questions, thus coping with the old-standing Common Law "Born Alive Rule" (BAR). Our assertion is that the European-Continental Law model should be adopted, thus defining a fetus as a human being from the beginning of the dilating pains. Accordingly, there is no place for the BAR and its complementary, nor for an independent offense of "Child Destruction," which aims to cover the period between inception and the fetus exiting his mother's womb. However, we also propose to adopt the Anglo-American Law approach in the sense that causing the death of a fully designed fetus is an aggravated abortion offense, thus mandating a severe punishment as close as possible to the punishment of a homicide offense imposed for causing the death of a human being. Consequently, it is our perception that there is no need to define the fetus, besides as a human being and as an object of the regular homicide offenses. Similarly, there is no need to define the assault of a pregnant woman, which causes the death of the fetus, as an independent offense or aggravated assault.