I am elated to hear that the public defender, Earl Witter, and opposition spokesperson on youth and gender affairs, Olivia Grange, are pressing for a change in our laws so that anyone who kills a pregnant woman would also be charged with killing her unborn child.
Several pregnant women - at least two of which were in advanced stages of pregnancy - lost their lives and those of their babies to gunfire. The sad truth is that our laws, which are still based on British jurisprudence, do not recognise an unborn baby as a separate life from the mother until the umbilical cord is severed and the baby becomes "a life in being" - a phrase which harkens back to the 16th century (believe it or not).
As recently as 1994, a case of a man who stabbed his pregnant wife came before the law lords. Although the wife recovered, the injury caused the premature birth of their child and its demise.
The law lords overtly lamented that the English law was "outdated and misconceived" and they had no option but to rule that the husband was not liable for the demise of the child. Therefore, if tried and convicted, the killers here in Jamaica can only be held responsible for the murders of the pregnant mothers.
So, the law, as it pertains to murder (which is covered in several sections of The Offences Against The Person Act), treats the unborn child as part of the mother. In general, I do not agree with the practice of terminating pregnancies (commonly referred to as abortions). However, I must confess that I believe that our laws concerning the unborn child are in urgent need of revision because The Offences Against The Person Act also covers abortions in sections 72 and 73 and therein treats any attempt at, or commission of, terminating any foetus as either a misdemeanour (punishable with up to three years' imprisonment with or without hard labour) or a felony (punishable with up to life imprisonment, with or without hard labour) depending on who does what.
WHY NOT LIABLE?
Therefore, if a young lady is raped by a deranged stranger and becomes pregnant, should she attempt to procure the means to or is successful in aborting the foetus, according to our law, she commits a felony and becomes "liable to be imprisoned for life, with or without hard labour". Yet, if a robber kills a (near-term) pregnant woman, he is not liable for the unborn baby's death.
Laws are not cast in stone; they need revision to suit our society and current scientific knowledge. Scott Peterson was sentenced to death (in 2004) for the double homicide of his wife and their unborn child because the United States of America already has foetal homicide laws (applicable under certain circumstances) in 31 states.
Thirteen states have laws that protect the unborn child only after a certain stage of development, and 18 states have laws protecting the foetus at every stage of development. Five states have no laws protecting foetuses but have laws against certain acts that terminate a pregnancy or cause a miscarriage.
As prominent attorney-at-law Bert Samuels warned, foetal protection laws may have far-reaching ramifications as it pertains to the rights of women. The way I see it, we need foetal protection laws. However, if a pregnancy endangers the (physical or mental) health of a woman, she should have the right to abort it (up to a certain stage) for her own safety. And, if a pregnant woman is murdered, we should additionally charge the perpetrator with unlawful abortion of a foetus in pregnancies before 28 weeks or with murder in pregnancies after 28 weeks.
Garth A. Rattray is a medical doctor with a family practice. Email feedback to firstname.lastname@example.org and email@example.com.