Foetal Murder: The Antiquated ‘Born Alive’ Rule

One of the most profound absurdities in modern-day Australian criminal law is the complete lack of substantive rights afforded to a foetus. According to Sir Edward Coke’s 1797 definition of murder, a child in utero is not deemed a‘reasonable creature in being’ until it is ‘born alive’.[1] The born alive rule maintains that a child can only be a victim of murder if the child has an independent existence from its mother, that is, death must occur after ‘the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs’.[2]

The implications of this black letter law defy rational belief. As was evidenced in the New South Wales case of R v King, a person who intentionally causes the stillbirth of a pregnant mother by kicking and stomping on her stomach could only be charged with causing grievous bodily harm against the mother, rather than the charge of murdering the foetus.[3] In Victoria, the murder of a child in utero warrants the charge of ‘causing serious injury’ against the mother under s 16 and 17 of the Crimes Act 1958 (Vic). However, the offence only carries a maximum sentence of 15-20 years, where it would otherwise warrant a potential sentence of life for murder.

The problem with the born alive rule is that there is no physiological distinction between a near-term foetus and a newborn infant.[4] Indeed, it is quite probable that a healthy child in utero could be more developed than a prematurely born infant.[5] So it is absolutely nonsensical to strip one from its right to life. The historical context in which the born alive rule was formulated must also be taken into consideration. It may have once been plausibly expounded that a murder charge was unjustified as there was no certainty of the foetus surviving the pregnancy. However medical technology has advanced so far in modern society that it is more likely than not that a pregnant mother will deliver a living baby. It is therefore unreasonable to apply an antiquated 18th century rule to a technologically advanced society.

The only conceivable logic which can be proffered for the operation of the born alive rule today is that the legislature and the courts have been afraid of policy implications on doctors performing abortions, as well as mothers exercising the freedom to abort their pregnancies. But surely legislation could be strategically framed to exempt these classes from foetal murder? Legal convenience is simply no justification to strip the rights of a perfectly healthy foetus and to pass it on to a perpetrator by default. Murder is murder, even if it is foetal murder!

Ali Besiroglu

[1] L Waller, C R Williams, Criminal Law: Text and Cases (10th ed, 2005) 129, 134-5.
[2] R v Hutty 1953 VLR 338 at 339.
[3] R v King [2003] NSWCCA 399.
[4] Kristin Savell, ‘Is the born alive rule outdated and indefensible?’ (2006) 28Sydney Law Review 625, 641.
[5] Ibid.