March 6, 2009
Criminal penalties, civil damages for terminating life of unborn increase under proposed laws
By BRIGID CURTIS AYER (Indiana Catholic Conference)
Is terminating the life of an unborn baby a crime? The answer to this question all depends on which part of the Indiana Code a person refers to. In one section, terminating an unborn baby’s life through abortion is legal, but in another section, terminating the life of an unborn baby is a crime called feticide.
Despite this paradox in the law, state lawmakers voted overwhelmingly in support of two measures recognizing greater rights of unborn children. One measure increases criminal penalties for persons committing feticide and the other expands wrongful death civil suits allowing parents to collect damages when the life of their unborn child is cut short.
Senate Bill 236 authored by Sen. James Merritt (R-Indianapolis) increases the penalty for feticide from a Class C felony to a Class B felony. Similar to the crime of homicide, a person who kills an unborn baby — while committing or attempting to commit murder or another crime — commits feticide. A person found guilty of causing the death of a child in utero may be sentenced to an additional term of imprisonment of six to 20 years. In criminal actions, the state prosecutes on behalf of the victim for crimes committed.
According to the National Conference of State Legislatures, currently, at least 36 states have fetal homicide laws. Indiana would join at least 19 states that have fetal homicide laws that apply to the earliest stages of pregnancy including the following definitions of life: “any state of gestation,” “conception,” “fertilization” or “post-fertilization.” For the purposes of feticide, SB 236 defines an unborn baby as “child in utero at any stage.” Senate Bill 236 passed the Senate 40-9.
Penalties for killing an unborn child in criminal suits would be increased under SB 236. Wrongful death laws in civil suits would be expanded under another proposal, the wrongful death or injury of a child bill, SB 341, authored by Sen. Brent Steele (R-Bedford). The bill expands wrongful death to include an unborn baby that had reached viability. Under the bill, viability is defined as a fetus that could survive outside the womb which is about seven months gestational age. The bill passed the Senate 47-2.
The proposed legislation addressing fetal death was prompted by an incident that occurred in Indianapolis in April 2008 where a bank teller who was pregnant with twins was shot during an attempted bank robbery. She survived the gunshot wound but her twins did not. The woman was five months pregnant. Marion County prosecutors were unable to prosecute for manslaughter, a criminal charge, because the babies needed to be seven months old under criminal law. The couple was unable to collect damages under Indiana’s wrongful death statute because the children were unborn. Under the proposed laws, this same couple would have been able to sue for damages in a wrongful death civil suit. In the criminal case, the perpetrator of the crime could have received a stiffer sentence.
By definition in Black’s Law Dictionary, wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives. Under common law, a dead person cannot bring a suit, and this created a legal hole in which activities that resulted in a person’s injury would result in civil sanction but activities that resulted in a person’s death would not.
The Indiana Catholic Conference, the Church’s official representative on public policy matters, supports the bills. “The Church is supportive of legislation that provides greater recognition, value and respect for the unborn human person,” said Glenn Tebbe, Executive Director of the Indiana Catholic Conference.
Senate bills 236 and 341 move to the House for further consideration.