Can a Fetus Like Laci's Sue?

The unborn son of Laci Peterson would not be recognized as a human being in a wrongful death lawsuit against the killer, but his family wants to give his unrealized life meaning by making him a pioneer for other unborn victims of violence.

On Wednesday, Laci's family, the Rochas, joined the National Right to Life Committee and other groups in their push to have Congress pass the federal "Unborn Victims of Violence Act." They want the measure named "Laci and Conner's Law" in their memory.

"As the family of Laci Peterson and her unborn son, Conner, this bill is very close to our hearts," the Rochas said in a letter written to the Republican sponsors of the bill, Rep. Melissa Hart of Pennsylvania and Sen. Mike DeWine of Ohio. "We have not only lost our future with our daughter and sister, but with our grandson and nephew as well."

The proposed law would make harming a pregnant woman and a fetus in any stage of development during the commission of a crime a federal offense, even if the alleged attacker or the woman had no prior knowledge of the pregnancy.

The Rochas' championing of the measure raises its profile, much the way the father of abducted teen Elizabeth Smart propelled Amber Alert legislation into the spotlight with an impassioned plea for its passage. It also puts the Peterson case squarely in the middle of the contentious debate between abortion rights and abortion opposition groups over the issue fetal rights.

From ‘Unborn’ to ‘Born’

The federal measure, which twice passed the House but failed in the Senate, would not likely affect Scott Peterson, who is charged under state law with capital murder for allegedly killing Laci and their unborn child. But the same issue is a matter of debate in California, as it is in many other states. The state is one of 26 that have criminal feticide laws, but it is not among the 39 states that allow relatives of the unborn to file wrongful death lawsuits on their behalf.

In order to file a lawsuit on Conner's behalf, the Rochas would have to prove he was not "unborn" but born alive — and then died as a result of his father's actions.

"California is one of those states where you cannot sue for prenatal death. You would have to prove the child was born, breathed and then died," said Walter Weber, senior litigation counsel for the American Center for Law and Justice, a public interest law firm that opposes abortion.

"In a perverse way, the law kind of rewards the person who commits the more devastating attack," he said. "If he does a really efficient job and the child dies before the mother can give birth, he won't be held responsible in a civil court. But if the child is born and breathes and then dies, he can be sued."

Investigators and prosecutors have not revealed what evidence they have gathered, and have not determined a cause of death for both Laci and the child.

Laci was nearly eight months pregnant when she disappeared. She was missing for nearly four months until the fetus and her remains washed up along a San Francisco Bay-area beach on separate days last month. A wrongful death lawsuit filed on Conner's behalf would depend on the forensic evidence. The fact that the bodies washed up along the shore separately could help the case.

"Right now, we don't know what the prosecution has or how the baby was separated from the mother," said Weber. "The way the bodies were found, it is possible that Conner was born alive and then died. Autopsy results could show whether or not he took a breath. We just don't know."

Fueling Political Momentum

State fetus protection laws in both criminal and civil cases do not restrict women's right to abortions. However, abortion rights supporters perceive them as an attempt by opponents to undermine the philosophy of Roe vs. Wade by recognizing a fetus as a human being under law, and as an initial step toward taking away the right to abortion.

"We've been seeing and continue to see legal conflicts between pro-life groups and feminist, pro-choice groups who are concerned with the entire question of how will this affect a woman's ability to have an abortion, will it make it more difficult, will it make it easier," said Jean Reith Schroedel, professor of Politics and Policy at Claremont Graduate University in a past interview.

"The irony of this situation to me is that if we are so concerned with fetal health and well-being, there are ways to protect pregnant women and fetuses without getting into the debate over what is a human life or when is a fetus considered a human life," she said.

And Laci Peterson's family's support of the federal Unborn Victims of Violence Act seems to have thrown some political momentum toward abortion opposition groups who have pushed for the bill's passage.

"Pro-abortion groups like NARAL continue to heartlessly insist that crimes like the murder of Laci and Conner have only one victim," said Douglas Johnson, legislative director of the National Right to Life Committee. "The pro-abortion advocacy groups have blocked enactment of unborn victims laws in many states. They have also blocked the federal unborn victims bill, insisting on a competing 'one-victim' proposal that in effect would tell a grieving, surviving mother that she didn't really lose a baby — that nobody really died in the crime."

Pawns for Political Agendas

Abortion rights groups accuse their opponents of exploiting Laci Peterson's family to further their own agenda.

"It is a sad statement that anti-choice leaders are willing to use a family's tragedy to continue their campaign to steadily take away a woman's right to choose," said Kate Michelman, president of NARAL Pro-Choice America, in a statement. "The only thing new about this bill is the lengths to which anti-choice lawmakers and advocates are willing to go to exploit a family's pain in order to move their own political agenda.

"Anti-choice lawmakers aren't interested in solving the problems — they are only interested in pushing their political agenda," Michelman continued. "Bipartisan legislation to protect pregnant women has repeatedly been offered but anti-choice leaders will not pass it."

Abortion rights advocates favor measure that would increase penalties for crimes against women, which would include pregnant ones.

Until Wednesday, perhaps because the heinous nature of the slayings, abortion rights groups had been relatively hesitant to comment specifically on the Laci Peterson case.

Mavra Stark, head of the Morris County, N.J., chapter of National Organization for Women, drew criticism last month when she told a local newspaper she was concerned that a double murder charge against Scott Peterson would support arguments by anti-abortion movement. Less than 24 hours later, Stark backed off her comments, saying that she was "thinking out loud."

Diverse Fetal Rights

Fetus protection laws in criminal and civil courts vary from state to state. Some criminal laws apply to fetuses from the beginning of their development while other states protect fetuses only after certain stages of development.

In civil cases, courts have been divided over whether dead fetuses should be regarded as people in wrongful death lawsuits and under what circumstances these lawsuits can be brought.

On Wednesday, the Connecticut Supreme Court ruled that a fetus is a body part, as it upheld the first-degree sexual assault conviction of a man who tried to induce a miscarriage by slipping labor-inducing drugs into his girlfriend's vagina.

Edwin Sandoval argued that he could not be charged with sexual assault because he targeted the fetus, not the mother. The woman later gave birth to a healthy boy.

Though the court held that a fetus was part of a woman's body, Chief Justice William J. Sullivan issued a separate concurring opinion where he held that a fetus might have "its own independent existence."

In 2001, the Arkansas Supreme Court ruled that a fetus could be considered a person in a wrongful death lawsuit brought by a man whose wife and unborn child died during childbirth procedures in 1995. However, Nebraska recently adopted a law that allows wrongful death suits on behalf of the unborn, but protects doctors and health-care providers from litigation — as long as the death of the fetus was intended, a provision designed to protect abortion providers.

Georgia allows wrongful death suits on behalf of stillborn fetuses who may not have reached viability, as long as the fetus was "quick" — capable of movement inside the womb. In Alabama, a judge last month cleared the way for an unborn child killed in a traffic accident to be a plaintiff in a wrongful death suit filed by her grandparents. Alabama allows for the parents of an unborn child to sue. But in this case, the mother, Jackie Adelle Porter, was killed and the father is unknown.

The American Civil Liberties Union believes parents of stillborn fetuses should be compensated. But it opposes wrongful death cases brought on behalf of the unborn because it could potentially infringe on women's reproductive rights, the group says.

"Recognition of a cause of action [or right to sue] for a fetus could also result in scrutiny of and interference with a pregnant woman's medical choices," the ACLU says in a statement. "Doctors who disapproved of women's decisions to give birth at home or refuse Caesarean sections might feel justified in seeking court orders to compel the women to act according to the doctors' advice."

Possible Unintended Targets

There are other wrinkles that can complicate matters when a fetus, or someone on its behalf, has the right to sue.

Mothers could be the target of wrongful death lawsuits by the fathers and relatives of the unborn, especially if their behavior was deemed questionable during pregnancy. If the father of the fetus or other relatives believe the mother didn't take proper care of herself, saw her smoke or drink, or perhaps eat poorly, they theoretically could hold her responsible for the stillbirth.

The courts and state legislatures may not be prepared to handle this kind of scenario.

"I've never heard of a case like that, but it would be interesting to see," said the NRLC's Johnson. "I don't think the legislatures would look forward to confronting a case like that."

Some state laws protect mothers from wrongful death lawsuits involving the unborn, which has sparked criticism that fetal rights tend to give women special legal status and violates the 14th Amendment right to equal protection under the law. However, fetal rights have not shielded women entirely.

According to the Center for Reproductive Law and Policy and the ACLU, women in 30 states have been prosecuted in criminal courts for fetal abuse for taking drugs during their pregnancy. In June 2001, a South Carolina jury made Regina Knight the first woman to be convicted of homicide for killing an unborn child through drug use.

Experts say that fetus protection and fetus litigation laws are needed, even if they do not foresee all circumstances.

"No one ever wants to question the actions of a parent, because people should be free to raise their children the way they want," said Weber. "But you need abuse laws to protect the children.

"People should also want these laws for a very practical consideration," Weber said. "If you have a doctor who is not sure the baby is going to make it [through the pregnancy] and knows, in the back of his mind, that he can be sued if child comes out of the womb [alive] and then dies. But he can avoid the whole thing if he waits [and the child is stillborn]. You hate to think that way, but you have to question why that thought is in the doctor's head."

Despite opposition, no state fetal homicide statute has ever been successfully challenged. However, some wrongful death claims on behalf of fetuses have been overturned.

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