Is a human fetus a human being?

Aysun Sesen, 25, pregnant with her first child, suffered numerous stab wounds October 2, 2007 to her upper body in the home in Toronto she shared with her boyfriend, Turan Cocelli, 29. She died and he was charged with her murder and the case is before the court at the time of this writing.

The dead woman's 7-month-old fetus, a girl, was delivered by caesarean section, but doctors were unable to save her. By Canadian law, if the baby had drawn a breath outside her mother's womb, she would have been declared a human being and the accused would be facing two counts of murder.

Conservative MP Ken Epp has introduced a private members' bill, which passed first reading at the end of last year. If approved by Parliament, the bill would create a new offence for injuring or causing the death of an unborn child when someone kills or assaults a pregnant woman.

This means that if the child is still in the womb of its mother but not having emerged and taken its first breath, it will still be declared a human being. If the fetus is injured and despite that, it is born but is severely handicapped because of the injuries, the person who injured the fetus will be faced with enormous hospital and support bills for the rest of the life of that injured human being. If the fetus dies, then the person who caused its death will be charged with murder or manslaughter, depending on the manner in which the death of the fetus came about.

The real problem as I see it is that of determining the time in the gestation stage in which the unborn child becomes a human being. A baby's heart begins to beat 18 days from conception, and by 21 days, the heart is pumping blood through a closed circulatory system. A baby's brainwaves can be detected at 6 weeks from conception.

A human being is a fetus from about the eighth week of life up until birth. By 9 weeks from conception, all the structures necessary for pain sensation are functioning. It seems to me that the baby becomes a functioning human after eight weeks from conception albeit its functions are limited at that stage. At 20 weeks; and perhaps as early as 16 weeks from conception, a baby is capable of hearing his mother's heartbeat and external noises like music. At 23 weeks from conception, babies have been shown to demonstrate rapid eye movements (REM), which are characteristic of active dream states.

In 1953, I was practicing hypnosis while serving in the Canadian Navy and I was asked by a seaman to hypnotize him and regress his memory back to when he was a child to determine why he hated his mother. Much to my surprise, I was able to regress his memory to two months prior to his birth. In his regressed memory, I learned of an event in his life as a fetus that took place two months prior to his birth. He overheard his mother telling his father that she didn’t want the baby and that she wanted to have an abortion. These words remained in the seaman’s memory and although it never came to the surface, it lingered in the recesses of his brain so that whenever he thought of his mother, the event hindered his love for his mother. I fixed his problem for him by regressing him back to that event again and then putting him in a state of amnesia so that the memory of that event wouldn’t subliminally appear again. He later told me that he truly loves his mother.

Currently, a total of eighteen states in the U.S. still subscribe to the born alive rule, either by express statutory language or through judicial interpretation. In eight of these eighteen states, criminal statutes explicitly define "person," "individual" or "human being" as one who is born and alive. Eight other states have definitions of "person" or "human being" in their statutes or refer to persons or human beings in their homicide statutes; and for this reason, their courts have held explicitly that the definitions of these statutes do not encompass fetuses.

In contrast to those maintaining the born alive rule, twenty-four states criminalize actions against the fetus. This approach recognizes the fetus as the victim of the aggressor's actions. As will be seen, however, these states differ with respect to the threshold at which criminal culpability attaches--some states will punish the offender only if the harmed fetus has reached a certain stage of development.

Modern medical jurisprudence refers to ‘viability’ as an important stage in fetal development. The Supreme Court of the United States defined viability in Roe v. Wade as that period at the end of the second trimester of pregnancy when the fetus is capable of surviving outside the womb. The Court determined that when balanced against a woman's right to privacy, a fetus was not a ‘person’ with rights under the Fourteenth Amendment. States, however, have an interest in protecting ‘potential life’ when the fetus reaches viability, usually at twenty-eight weeks of pregnancy, but theoretically as early as twenty-four weeks.

Six states criminalize homicides of viable fetuses by statute or judicial interpretation. Three of these states protect fetuses with homicide statutes. For example, Indiana originally enacted a "feticide" statute that criminalized knowing or intentional termination of another's pregnancy, with exceptions for abortion, and mandated a maximum eight-year penalty. In Baird v. State, the Supreme Court of Indiana held that the legislature intended this statute to punish those who "knowingly terminated a human pregnancy," even without the specific intent to kill the fetus.

Yielding to popular support for a more effective feticide law, the Indiana legislature, over the governor's veto, enacted sweeping legislation criminalizing acts against pregnant women and fetuses. The most significant provision of these new laws established murder of a pregnant woman that results in the intentional death of a viable fetus as an aggravating circumstance for a death sentence or life imprisonment without parole. The Indiana law also includes penalties for crimes against viable fetuses and pregnant women ranging from murder to aggravated battery.

Although their statutes are silent on the meaning of ‘person’ for the purposes of homicide, the courts of Massachusetts, South Carolina, and Oklahoma have held that viable fetuses are indeed persons under these laws. The situation in South Carolina is illustrative. South Carolina abrogated the born alive rule in 1984 in State v. Horne. In Horne, the defendant was convicted of assault and battery with intent to kill and involuntary manslaughter. Horne had stabbed his estranged wife, who survived, but her full-term viable fetus died. The court determined that the fetus was the victim of the defendant's transferred intent toward the mother and held that a viable fetus was a ‘person’ within the state's statutory definition of murder; hence he was convicted of the murder of the fetus.

In State v. Ard, the Supreme Court of South Carolina upheld a defendant's death sentence for the murders of his girlfriend and their viable unborn son. The Ard court ruled that a viable fetus is a ‘person’ or ‘child’ in terms of statutory aggravating circumstances, making the defendant eligible for the death penalty. The court recognized that when the legislature added the appropriate aggravating circumstance to the murder statute, it was aware of the court's decision in Horne and could have decided to exempt fetuses from the definition. South Carolina thus became the first state to allow the death penalty for someone convicted of murdering a viable fetus.

Florida rarely prosecuted violations of the state's fetal manslaughter statute. In a notable case, however, a defendant who stabbed his pregnant ex-wife was charged with fetal manslaughter. The case attracted a great deal of attention from both sides of the abortion debate. The jury ultimately convicted the defendant for manslaughter of the woman, but the court dismissed the manslaughter charge for the fetus. The judge said that according to the 100-year-old statute, the defendant could be convicted of manslaughter in the death of the fetus only if he had been found guilty of murdering the woman.

As we can see, the issue is in a constant state of flux and it will take great minds in our parliament to come up with a solution to this perplexing problem if the issue is ever raised in parliament.

I will again state that in my opinion, a fetus is a viable human being when it has reached the gestation stage of two months after conception and I feel that anyone that harms a fetus (other than a mother or her doctor) should pay the price and penalty for doing so.