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Steve Weatherbe

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UK judges dismiss claims for injuries in the womb: claimants weren’t yet ‘persons’

Steve Weatherbe

British judges have been disqualifying babies with fetal alcohol syndrome from compensation under a program for the innocent victims of crime, arguing that at the time of their injuries they were not considered “persons” under the law. The Society for the Protection of Unborn Children has decried the ruling as defying reason.

The ruling by the Court of Appeal involves a single claimant but 80 more children with fetal alcohol syndrome (FAS) were waiting in the wings looking for compensation from the Criminal Injury Compensation Authority, until, that is, the judges ruled that they could not be considered a victim of poisoning because they weren’t yet “persons” when the poisoning occurred.

“This cruel judgment not only leaves disabled children without just recompense, it flies in the face of common knowledge about when life begins and - it is anti-rational,” says Paul Tully, SPUC’s general secretary.

The ruling also appears to contradict a recent ruling made by some of the very same judges, in which they found the injury of an unborn child in the womb who died after birth merited a manslaughter charge against the assailant.

The judges in the homicide case said that the initial assault and subsequent death formed a single contiguous act that spanned the victim’s legal non-personhood before birth and legal personhood afterwards. Thus the homicide was committed against a human being.

But in the FAS case, all the injuries were caused by alcohol at the time the mother consumes it, well before the unborn child became a legal person under Section 23 of The Offences Against Persons Act of 1861, which deals with poisoning.

“If CP was not a person whilst her mother was engaging in the relevant actions, then she was not ‘another person’ for the purposes of s23 and as a matter of law her mother could not have committed a criminal offence contrary to s23 in relation to her unborn child.”

This means, said Tully, that “learning difficulties, musculo-skeletal abnormalities and epilepsy” that show up later in the life of a child with FAS must be deemed to be present in the womb.

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Canadian case law has been forced into the same legal somersaults by its denial of legal status to the unborn child, says Andre Schutten, legal counsel for the Association for Reformed Political Action.

Section 223 (2) of the Criminal Code of Canada specifically classifies as homicide the causing of  “injury to a child before or during its birth as a result of which a child dies after becoming a human being.” But mere assaults against the unborn can trigger no charges under the Criminal Code, and civil claims for injuries suffered in the womb lose. Similarly, an attempt by the Winnipeg Child and Family Services to force a drug-addicted pregnant woman into treatment was overruled by the Supreme Court of Canada in 1997. And in the Dobson vs Dobson case two years later, the same court threw out a lawsuit against a woman whose son was injured during a traffic accident she caused by driving drunk.

Schutten told LifeSiteNews: “Anyone with any grasp of science, reason, natural law or common sense immediately sees the contradiction of saying that the unborn child can only be treated as if it were a person before birth if it dies after birth.”

The United States goes much further to protect the unborn. Fully 38 states have fetal homicide laws that apply regardless of whether the child dies before or after birth and many also criminalize assault against unborn children. These co-exist uneasily with the U.S. Supreme Court’s recognition in its 1973 Roe v Wade case of every woman’s right to an abortion. In July Mallory Loyola, a methadone addict, was charged with assault under a new Tennessee law prohibiting pregnant women from doing drugs.

Erin Mersino, a trial lawyer with the Thomas More Law Society, said, “The fact that criminal laws thorough our country readily name the unborn as victims of crime proves that life exists while in the womb.  This fact cannot be reconciled with our abortion laws.”

Paul Tully echoed that in a prepared statement: “English law remains in denial.”

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