Dietrich v. Northampton, Massachusetts

1. Dietrich v. Northampton, Massachusetts Law, Values, and Public Policy Presenter: Joni Hsu

2. Background • Earliest fetal rights case • Argued on September 17, 1884 • Supreme Judicial Court of Massachusetts • Plaintiff: A woman • Defendant: Peter Dietrich, administrator • Judge: Oliver Wendell Holmes

3. What happened • A woman was between four and five months advanced in pregnancy • Slipped and fell on defendant’s negligently maintained road in Northampton • She delivered her child, who survived his premature birth only about fifteen minutes • The woman sued the town for damages in tort court

4. Questions at Hand • Is the child a “person” for the loss of whose life an action may be maintained against the town by his administrator? • Can a child who sustains a prenatal injury and survives only a short time maintain a cause of action?

5. Plaintiff’s Argument • Statement by Lord Coke, which seems to have been accepted as law in England: an individual should be criminally liable for injuring a child while in untero if that child were later born alive. Thus, if a pregnant woman takes a potion, or if a man beats her, and the child is born alive and dies of the potion or battery, this is murder

6. Defendant’s Argument • The fetus was a part of the woman’s body at the time of the injury, and not a separate person having rights and interests of its own • An infant dying before it is able to live separated from its mother could not be said to have become a person recognized by the law as capable of being represented in court by an administrator

7. Outcome • Decided on October 27, 1884 • Court ruled that the action could not be maintained • Since the injury occurred to the mother, Holmes found no cause of action allowable from the fetus • Provided no means by which the parents could recover damages for injuries inflicted on the fetus before birth, even after the live birth of the child • Failed to compensate the pregnant woman for her loss

8. Prenatal Tort Liability • Courts were reluctant to recognize prenatal tort liability • Main barriers to recognizing this liability: -whether an individual owes a duty to a fetus -If a duty does exist, at what state of fetal development the duty begins • Today, most states recognize prenatal tort liability

9. Entity Theory • A fetus is a part of the woman’s body and not a separate person having rights and interests of its own

10. Viability Theory • Viable– capable of meaningful life outside the mother’s womb • “born alive” doctrine • Although the fetus was within the womb, it became viable when it was capable of living outside the uterus • Scientific advancements have progressively reduced the point of viability such that some jurisdictions are willing to legislate the exact week a child is viable • Viability estimated at twenty-four weeks

11. Biological Theory • A child may bring a cause of action for injuries sustained from the moment of fertilization • Applies primarily to third-party liability for fetal injury

12. Position with respect to thefetus-as-person • Genetic humanity– the fetus is a person throughout its development • Viability, brain waves– the fetus achieves personhood, at some point in its development • The fetus is not a person, it lacks moral standing completely • Though the fetus is not a person, it yet possesses at least some moral standing

13. Problems with the law • Realized that there were clearly problems with the law as it stood, both for pregnant women themselves and for those who would later affirm the rights of the fetus against the rights of women • While the law could compensate parents for prenatal injures, ironically it could not compensate them for prenatal death

14. What has happened since • Many cases since then have looked back on the Dietrich case to analyze what they should do with their case • In 1984, Commonwealth v. Cass recognized as a “person” a fetus that died as a result of injuries caused by an automobile accident • Since then, at least ten states have enacted laws which allow the prosecution for homicide of those who “murder” a fetus

15. What has happened since (cont.) • Since 1984 there has been a dramatic rise in the number of cases involving prosecution for fetal homicide • Nearly every newspaper story detailing the murder of a pregnant woman now addresses at least the possibility of prosecution for the homicide of the fetus as well • Dozens of states have enacted feticide laws, giving the fetus full legal status as a person under criminal and tort law

16. References • Daniels, Cynthia R., At Women’s Expense, Harvard University Press, 1993 • Sylvester, Edward, “Chenault V. Huie: Denying the Existence of a Legal Duty between a Mother and Her Unborn Child,” Akron Law Review, 1999 • Mascaro, Marisa L., “Preconception Tort Liability: Recognizing a Strict Liability Cause of Action for DES grandchildren,” American Journal of Law & Medicine, Boston University School of Law, 1991