Interpretation of Statute 444

Statute 444 reads, “Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.” This discussion deals with the applicability of this statute to an incident wherein four pregnant women suffered damage to their fetuses as the result of an ambulance driver’s negligence.

Any interpretation of a statute by the courts must examine the language used in that statute very closely. Even a cursory examination reveals a problem: a wide range of possible interpretations. For example, “parturition” refers to the process of giving birth and is generally understood to mean “the act or process of giving birth to offspring” (Merriam-Webster). Also, as noted by Shah (2000), a fetus is “viable” after conception and thus has legal rights (931). Therefore, only the injuries done to Marta’s and Pauliena’s fetuses are relevant in terms of Statute 444, since only those two women were actually in the process of giving birth. This interpretation is reinforced by an examination of the phrase “a child in the state of being born,” which further delineates the distinction between simply a fetus in a pregnant to-be mother and one that is actually in the process of being born. In this case, the sign that the birthing process had begun was that Marta’s and then Pauliena’s water had broken. Aysha and Greta’s had not and in fact, their children were born weeks later.

A further examination of the statute should focus on the language “destroy the life or vitality.” The statute would thus only apply when the fetus was killed as a result of the accused’s actions. Thus, by this criterion, only the injuries to Marta’s and Aysha’s fetuses are relevant. However, as noted above, Aysha’s fetus was not in parturition: the state of being born. The principle that applies here is expressio unius est exclusion alterius (whatever is omitted is understood to have been excluded). Therefore, the narrow scope of the language used in the statute must be applied narrowly: it applies only to fetuses in the state of being born.

Before moving to an examination of Marta’s case, it is necessary to examine the statute in terms of statutory construction. One immediately obvious omission from the statute is the recognition of the degree of negligence, a torts law issue, on the part of the person causing the injury. For example, there is no distinction drawn between someone who kills a fetus as, say, the result of felony drunk driving or in the course of one’s work, as in this case. In interpretations such as those necessary here, the concept of ejusdem generis (all else of the same type) must apply. As Quarles (1949) observed, “The…most important cause for the controlling importance of statutory construction…is the meticulous care with which courts consider legislative language when conviction or release of the accused individual depends upon the interpretation the courts accept” (531). In the many laws and statutes dealing with wrongful death, the intent or lack thereof, as well as the degree of negligence, are major components of such legislation. Yet, Statute 444 draws no such distinctions.

In such cases, the duty of the judge is to divine legislative intent: what was the purpose of drafting the law? It would seem that the purpose of the law was to equate causing the death of a fetus with causing the death of a “live” human being. Therefore, this statute must be interpreted in the same light as other laws regarding wrongful death: the degree of negligence and of intent must be established. The driver of the ambulance was expediting the delivery of a patient or patients to the hospital, as was his job. It is not clear whether the women’s SUV was parked in a manner so as to make it clearly visible to approaching emergency vehicles. In fact, there could easily be a large degree of contributory negligence on the part of the women.

Returning to the specific case of Marta, another problem asserts itself. Marta and her fetus were in a car accident. The fetal ultrasound confirmed irrefutable harm and her fetus was then stillborn. However, correlation does not equal causation. It is not given in the facts of the case whether an autopsy of the fetus had determined that it had been alive before the accident and had died as a result of it. In criminal law, it is a guiding principle that a causal link must be established between a criminal act and the outcome for which the offender is being prosecuted. Tadros (2007) noted the distinction between descriptive and normative concepts of criminal responsibility and “…the nature of justification defenses, the different kinds of excuse claim and the role that particular characteristics of the accused might have on the standards which the defendant must have met to escape criminal responsibility” (1).

The findings in this case are as follows:

1) In the case of the death of Marta’s fetus, if medical forensics has determined that the accident between the ambulance and the SUV caused the death of the fetus, then the driver of the ambulance can be prosecuted and found guilty under Statute 444. However, there remain several issues regarding the degree of negligence on the part of the driver and possible contributory negligence on the part of Aysha, the driver of the SUV. The appropriate sentence for the driver, if found guilty, would be the statutory minimum of five years, since he was performing his duties in an emergency context. Furthermore, as Morgan, Trail, and Tromper (1995) note, the driver of the ambulance may have an affirmative defense of legal immunity due to his having been performing emergency services. The authors discuss the many immunity claims available to persons in such contexts, such as “the use of liability immunity (sovereign immunity, emergency medical care immunity, or Good Samaritan immunity)” (Morgan et al. 82). Again, the concept of ejusdem generis applies: there is extensive legislation as well as case law supporting the immunity from prosecution granted to those performing emergency services. Certainly, this would provide robust grounds for appeal in this case.

2) Pauliena’s child was a live birth and the fact that her child was later found to be developmentally slow has no bearing in terms of Statute 444. Aside from the weakness of any causal link between possible trauma caused to the fetus and the child’s subsequent developmental problems, the only question that needs to be answered here is if the ambulance driver “destroyed the life or vitality of the child.” Clearly, he did not.

3) Aysha’s child was not injured during parturition or while “in a state of being born.” Therefore, the statute does not apply. However, a quite broad interpretation of the statute could be that the entire cycle of pregnancy is a “state of being born” and thus, the statute applies even though Aysha’s fetus was only six months old. This interpretation would be generated far more from the divination of legislative intent than from a literal interpretation of the statute. The concept of legislative intent is balanced against expressio unius est exclusion alterius here, and the lack of existing case law is a problem. It is a near-certainty, though that that any ruling that extended the definition of “parturition” to cover a woman’s entire pregnancy for the purposes of this statute would be subject to challenge on appeal.

4) Grettie’s child was not killed and his unusual marking that was a result of the accident did not affect his “vitality or life” as per the statute in any way. Therefore, the statute does not apply. Also, Grettie’s child was not in parturition at the time, being born a month later.

The poor wording of this statute may, in fact, render it unenforceable. Only in the case of the death of Marta’s fetus can the statute be said to apply unless it is very broadly interpreted. The driver may be prosecuted under the statute for the death of Marta’s fetus, but as noted above, the question of degree of negligence on the part of the driver and any affirmative defense he might invoke regarding the fact that he was providing emergency services may substantially weaken such prosecution and open the door wide for appeal of a conviction.

Works Cited

Morgan, David L., William R. Trail, and Vicky A. Trompler. "Liability Immunity as a Legal Defense for Recent Emergency Medical Services System Litigation." Prehospital and Disaster Medicine, vol. 10, 2, 1995, pp. 82-90.

Parturition. Merriam-Webster.com. Merriam-Webster, 2014.

Quarles, James C. "Some Statutory Construction Problems and Approaches in Criminal Law." Vanderbilt Law Review, vol. 3, 1949, p. 531.

Shah, Mamta K. "Inconsistencies in the Legal Status of an Unborn Child: Recognition of a Fetus' as Potential Life." Hofstra Law Review, vol. 29, 2000, p. 931.

Tadros, Victor. Criminal Responsibility. 2007. Oxford University Press.