386 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 18:380 and heart rate of the NEWBORN are measurable; the same is true of the UNBORN.42 One of the indicia of human death is the irreversible cessation of the spontaneous functioning of the circulatory system.43 Conversly, the presence of spontaneous circulation signifies the presence of life. Both the NEWBORN and the UNBORN are alive. 4. The NEWBORN possesses a well-developed (though not completely developed) brain; so does the UNBORN." The brain of the NEWBORN sends out impulses which are recordable on an EEG; but the same is true of the brain of the UNBORN45, and there is substantial evidence that conscious experience is possible for the latter1 as well as the former. Another of the indicia of human death is the irreversible cessation of the cerebral function as evidenced by a flat EEG.47 Conversely, the presence of recordable brain impulses signifies the presence of life. Both the NEWBORN and the UNBORN are alive. 5. The NEWBORN has a neural control mechanism, and the muscles and nerves work together; the same is true of the UNBORN.48 Like the NEWBORN, the UNBORN responds to tickling," and reacts to pain.50 Another of the indicia of human death is the clinical absence of reflexes.51 Conversely, the presence of such reflexes signifies the presence of life. Both the NEWBORN and the UNBORN are alive. 6. The NEWBORN moves spontaneously; so does the UNBORN.52 7. The movement of the NEWBORN can be felt by those who carry him; the movement of the UNBORN is not usually felt by the pregnant woman who carries him until the sixteenth week; this is the phenomenon known as quickening.53 The point at which quickening takes place depends upon the sensitivity of the mother and is thus variable.5 "To take quickening as a stage for determining the baby's status as human being is obviously very subjective and archaic since this depends on the mother's sensitivity to the baby moving and yet we know that the baby is actually moving as early as eight to ten weeks."55 42. Id. at 103a (de Veber). 43. Halley & Harvey, Medical vs Legal Definitions of Death, 204 J.A.M.A. 423, 425 (1968). 44. Id. at 103a (de Veber) Id. at 114a (Procaccini). 45. Id. 46. Id. at 114a (Procaccini). 47. Halley & Harvey, supra note 43, at 425. 48. Jurisdictional Statement, supra note 24, at 114a (Procaccini). 49. Id. at 103a (de Veber). 50. Id. at 104a (de Veber). 51. Halley & Harvey, supra note 43, at 424. 52. Jurisdictional Statement, supra note 24, at 103a (de Veber). 53. Id. at 115a (Procaccini). 54. Id. 55. Id. at 103a (de Veber). 1974] THE ABORTION AMENDMENTS 387 8. The NEWBORN breathes air and the UNBORN breathes fluid; they both breathe.56 9. The NEWBORN "looks like" a live human being, but "those of us who are constantly watching these babies before birth and after birth cannot really distinguish them before or after birth."57 Moreover, the UNBORN looks like the NEWBORN: I have examined page 2 of Exhibit C annexed to the summons and complaint herein. This is a very accurate and striking picture of a 2 month old unborn baby showing the ears, the eyes, facial features, the hands and feet. In real life this baby would be moving and a heart beat would be visible through the chest wall. He would also react to pain and exhibit various sets of reflexes which would be very similar although possibly not as well developed as a newborn baby in the nursery. The large head reveals a well developed brain with higher centers which obviously continues to develop as the baby grows both in the uterus and after birth. Because there is very little subcutaneous fat this baby like any premature baby would show very striking blood vessels which can be seen in this photograph in the head and also in the legs.58 10. In the current state of technology, the UNBORN is totally dependent upon his mother for nourishment and an environment conducive to continued life (he is "nonviable"), while the NEWBORN though similarly dependent, need not rely on his mother alone, and another may act as substitute for the mother (he is "viable"). This is a distinction without a difference: (a) Viability is a function, not of the UNBORN, but of the vagaries of technological progress in developing substitute life support systems. "The baby depends on the mother only for oxygen and certain nourishment and this can be just as easily provided by some other support system."59 "The period of viability, the ability of the baby to survive outside the womb, is obviously changing rapidly with advances in medical science. Twenty years ago a fetus under 28 weeks could not survive and yet we now know that babies as young as 20 and 19 weeks survive. New advances will undoubtedly decrease the period further so that the present standard is no more sacred than the four minute mile."60 Twenty years ago a twenty week old child in the womb was not viable; today he may be. Such a child was no less a live human being twenty years ago than his counterpart is today. Today an eight week old child in the womb is not viable; twenty years from now he may be. Such a child is no less a live human being today than his counterpart twenty years from now. (b) The UNBORN have been described as "astronauts in inner 56. Id. 57. Id. at 102a (de Veber). 58. Id. at 103a-104a (de Veber). The photograph referred to in the testimony (annexed as page 2 of Exhibit C to the complaint, id. at 95a) was extracted from R. RUGH & L. B. SHETTLES, FROM CONCEPTION TO BIRTH 54 (1971). That the UNBORN is in all respects a visually recognizable baby at this point in gestation is beyond dispute. "In pregnancies beyond the seventh week, fetal parts are recognizable as they are removed piecemeal [by abortion]." Guttmacher, Techniques of Therapeutic Abortion, 7 CLINICAL OBST. & GYN. 100, 103 (1964). 59. Jurisdictional Statement, supra note 24, at 102a (de Veber). 60. Id. at 103a (de Veber). 388 space."61 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 18:380 The analogy is apt, a space-walking astronaut in outer space is connected by an "umbilical cord" to the "mother" ship and if the cord should be cut the (nonviable?) astronaut dies and the mission is said to have been "aborted". Earthbound human beings may also be dependent on substitute life support systems-the newborn in an incubator, the intravenously-fed adult in an oxygen tent. Yet withal, they are live human beings-as is the UNBORN. (c) The NEWBORN is not a part of his mother; neither is the UNBORN. "The baby is never a part of the mother. In the biological sense, he is always a complete individual. An abortive act leaves the mother entire and whole and simply removes the baby from the life support system she had provided."62 (Developmental biology.) “This emphasizes the biological separateness of the baby and the mother since the baby has a completely different set of blood groups . . . . "63 (Fetology.) "Its existence is a biologically separate existence from that of its mother."64 (Cytology-cytogenetics.) The unborn has his own "individuality".05 (obstetrics-gynecology.) (d) Whether or not an individual is a live human being in fact does not depend on the number of people who are hypothetically and alternatively available to provide him with nourishment and a healthful environment. There is no basis in science or elsewhere for the proposition that the more specifically dependent an individual is, the less human he is. 11. The NEWBORN has been born; the UNBORN has not been born. But "[t]he life history of an individual is a genetic and biological continuum in which intra-uterine existence and birth are only events." "The prenatal period is now biologically regarded as part of the total lifetime of an individual. To a biologist birth is merely an event in an individual's total life."67 Puberty, too, is an event but the child before puberty is no less a live human being. 12. Quickening, viability, birth-none of these will make the UNBORN more alive, more human, more individual, or more in beingmore of a living human baby-than he is at eight weeks. From this point of view, infanticide of the NEWBORN and abortion of the UNBORN are indistinguishable. 13. Nor are the NEWBORN, at eight days postnatal age, and the UNBORN, at eight weeks prenatal age, any more human, alive, or in being than younger unborn children. For instance, the unborn of four weeks gestational age, "has developed distinct organ situations with a beating heart and blood circulation." "Various tissues are interacting, one with another, and the result is a physiologically wellfunctioning total." "The primary brain is present . . . and shortly the fore-brain ultimately leading to the cerebral cortex, the highest 61. Id. at 105a (de Veber). 67. Id. at 125a (Garner). 1974] THE ABORTION AMENDMENTS 389 and best developed region of the brain, will appear. The baby now has its own blood and circulatory system and does not exchange blood with the mother."70 14. Neither can the unborn of less than four weeks gestational age be called anything less than a live human being: My efforts have been directed primarily in the area of developmental physiology, molecular embryology and genetic theory. My work includes examination of the interaction of genes in the human individual. The moment of fertilization is, strictly speaking, the point wherein the sperm nucleus coalesces with the femal nucleus in the ova. At that moment a new individual's life has commenced. Its genetic endowment is complete, determined, unique and distinguishable from the genetic endowment of the mother. Genetically and biologically, there is complete separability between the mother and the new individual. The mother's role from that point is to provide nourishment and safe environment until birth. The life history of an individual is a genetic and biological continuum in which intra-uterine existence and birth are only events.71 This then was the composite picture of the unborn child to be found in the expert-witness affidavits presented by the writer, as guardian ad litem for unborn children threatened with elective abortion in New York City municipal hospitals, on a motion for an injunction pendente lite. The trial court found "that, as a medical fact, the fetus is a live human being,"72 and issued the injunction. However, a divided appellate division dismissed the complaint on the ground that the unborn child is not a legal person, though it admitted that there were "no factual issues requiring a trial and the parties so conceded on the argument of the appeal. The medical affidavits submitted by the guardian have not been factually disputed and New York Courts have already acknowledged that, in the contemporary medical view, the child begins a separate life from the moment of conception."73 A divided New York Court of Appeals affirmed the appellate division, but like the intermediate court, it admitted that an unborn child "has an autonomy of development and character although it is for the period of gestation dependent upon the mother. It is human, if only because it may be characterized as not human, and it is unquestionably alive."74 70. Id. 71. Id. "The mother's biological contribution from conception on is nourishment and protection; but the foetus has become a separate organism and remains so throughout its life. That it may not live if its protection and nourishment are cut off earlier than the viable stage of its development is not to destroy its separability; it is rather to describe the conditions under which life will not continue. Succeeding conditions exist, of course, that have that result at every stage of its life, postnatal as well as prenatal." Kelly v. Gregory, 282 App. Div. 542, 544, 125 N.Y.S.2d 696, 697 (3d Dep't 1953). 72. Byrn v. New York City Health & Hosps. Corp., No. 13113/71, (N.Y. Sup. Ct., Queens Co., Jan. 4, 1972), reproduced at Jurisdictional Statement, supra note 24, at 60a, 68a. 73. Byrn v. New York City Health & Hosps. Corp., 38 App. Div. 2d 316, 324, 329 N.Y.S.2d 722, 729 (2d Dep't 1972) (citations omitted). 74. Byrn v. New York City Health & Hosps. Corp., 31 N.Y.2d 194, 199, 286 N.E.2d 887, 888, 355 N.Y.S.2d 390, 392 (1972). 390 SAINT LOUIS UNIVERSITY LAW JOURNAL [Vol. 18:380 The issue on appeal to the United States Supreme Court thus narrowed down to whether every "live human being," every "child," every "human" who is “unquestionably alive," and "has an autonomy of development and character" is possessed of the fundamental rights to live and to the equal protection of the laws. While appellant's jurisdictional statement was before the Supreme Court, Wade and Bolton were decided, and the Court dismissed the appeal for want of a substantial federal question.75 Obviously the writer disagreed with the ultimate holding of the New York courts that not every live human being is a legal person. But at least these courts took cognizance of the undisputed expert testimony, and all thirteen judges found as a fact that each member of the unborn class was a living, autonomous, human child. As the writer has pointed out elsewhere, to base a decision on the issue of prenatal human beingness on anything but the scientific facts of life. before birth, is to impose an essentially arbitrary and dangerously selective value judgment on human life.76 This is precisely what the Supreme Court did in Wade when, after refusing to decide the question of whether unborn children are live human beings because of a lack of "consensus" on the point (i.e., a dispute about the value, not the existence, of life before birth), the Court proceeded to define unborn children as the "potentiality of human life." To put it another way, despite its awareness of "the well-known facts of fetal development,"78 the Court decided that these factually alive human beings had only potential value-that their lives were not yet "meaningful."79 "The very considerable semantic gymnastics which are required to rationalize abortion as anything but taking a human life"so are practiced not alone by courts. In a book intended for expectant mothers, anthropologist Ashley Montagu wrote, The basic fact is simple: life begins, not at birth, but at conception. This means that a developing child is alive not only in the sense that he is composed of living tissues, but also in the sense that from the moment of his conception, things happen to him. Furthermore, when things happen to him, even though he may be only two weeks old, and he looks more like a creature from another world than a human being, and his birth date is eight and a half months in the future, he reacts. In spite of his newness and his appearance, he is living, striving human being from the very beginning, 81 75. Byrn v. New York City Health & Hosps. Corp., 410 U.S. 949 (1973). 76. Byrn, supra note 8. 77. See notes 12-14 & accompanying text supra. 78. 410 U.S. 156. 79. See Byrn, supra note 9, at 840-42, 857-61. 80. Editorial, A New Ethic for Medicine and Society, 113 CAL. MEDICINE, Sept. 1970, at 67-68. 81. A. MONTAGU, LIFE BEFORE BIRTH 2 (1964). |