PROTECTION OF THE FETUS IN CRIMINAL LAW
Prenatal children, a/k/a unborn children, are easy to victimize and hard to protect. U.S. laws provide some protection for them, but are weak when it comes to enforcement mechanisms. This article proposes a familiar and effective enforcement mechanism: guardians ad litem, to help bridge the gap between what society promises, and what it delivers. Expansion of laws protecting postnatal children to include prenatal children is also proposed.
Postnatal children enjoy many of the legal rights and protections afforded to adults. The laws of every state in the United States (and including the federal government) and of many foreign jurisdictions broadly provide for the appointment of guardians ad litem to protect their interests. These children are also protected by the criminal laws against homicide generally, and by particular criminal laws to protect them against certain forms of abuse.
Prenatal children enjoy certain legal rights as well, and these rights have been rapidly developing in both the civil and criminal context as American jurisprudence has reacted to the opinions of the U.S. Supreme Court concerning abortion. While the lives of prenatal children can be terminated by their mothers in some circumstances without legal consequence, e.g., pre-viability abortion, this is not true for all prenatal children in all circumstances, nor is it true with respect to all persons. And while the prenatal child may in some circumstances be killed by its mother at will, the prenatal child may not lawfully be otherwise damaged by its mother or any other person.
Laws enacted by state and federal political branches of government in the wake of Supreme Court abortion law now protect the prenatal child from civil injury and wrongful death by tortfeasors, recognize inheritance and insurance rights in prenatal children, and protect the prenatal child by imposing criminal sanctions against those, including their mothers and abortionists in some circumstances, who would take their lives.
This article examines U.S. and foreign law in the area, and explores a gap that remains in the law protecting prenatal children. That gap exists where the expectant mother damages her child by taking drugs or excessively drinking alcohol, producing a host of adverse consequences to the child and to society, and where the expectant mother is in danger of undergoing an illegal abortion, which also has adverse consequences to the child and to society. While torts and crimes involving the prenatal child are readily responded to after the child is born or killed, e.g., by medical malpractice or assault suits, or by prosecuting abortionists for violation of state or federal abortion laws, there remains a clear gap in the law to prevent such unlawful acts from being committed in the first place. The gap is prominently displayed in the ongoing prosecution of the notorious abortionist Dr. Kermit Gosnell and his “house of horrors” in Pennsylvania.
A solution is to empower courts to swiftly appoint guardians ad litem to represent the interests of the prenatal child, providing for compulsory care of the expectant mother during the prenatal child’s gestation, and providing for injunctive relief against planned illegal abortion with loss of medical license for abortionists performing illegal abortions in violation of an injunction. Only one jurisdiction in the United States, Wisconsin, has specifically provided for the appointment of guardians ad litem for children suffering from prenatal abuse and neglect. This article argues that the legal protection presently afforded to prenatal children needs to be expanded by empowering courts to appoint guardians ad litem in all cases involving substantiated allegations of maternal substance abuse or planned illegal abortion.
Courts have already demonstrated a willingness to protect the interests of prenatal children in many contexts. For example, pregnant women have been required to receive medical treatment in the form of blood transfusions and caesarian sections for the benefit of their prenatal children, even when the procedure in question ran counter to the expectant mother’s wishes. Courts have also allowed recovery for prenatal injuries and death resulting from the negligent and criminal conduct of third parties. Additionally, courts have been willing to terminate the parental rights of women who abused alcohol and drugs during pregnancy. Having recognized the legal duties that expectant mothers owe to their prenatal children, the next step is for the government to enforce those duties by appointing a guardian ad litem whenever an expectant mother fails to fulfill her legal responsibilities. Guidelines for legislation to accomplish this are offered.
In addition to explaining why the legal protection already afforded to prenatal children needs to be expanded, this article also discusses why the Supreme Court’s decision in Roe v. Wade and its progeny are irrelevant in child protective proceedings. By reforming current child welfare legislation to include guardian ad litem representation in all cases involving prenatal abuse, neglect, or planned illegal abortion, the government can more effectively prevent harm to the most vulnerable members of our society.
 Mark H. Bonner is an Associate Professor of Law, Ave Maria School of Law. Jennifer A. Sheriff is a Deputy County Attorney with the Maricopa County (Arizona) Attorney’s Office. Ms Sheriff’s contribution to this article is her personal work product and does not necessarily reflect the official position of the Maricopa County Attorney’s Office. The authors wish to thank Professors Jane Adolphe, Ligia De Jesus, and Kevin Govern of Ave Maria School of Law for their review of this article, and for their advice and encouragement. The authors wish to thank and recognize Joshua Scott (JD 2011) and Christina Wennerlind (JD 2012), Ave Maria School of Law, for their research assistance.