Recently, a young woman admitted to Melbourne’s Royal Women’s Hospital confronted a tragic dilemma and an even more tragic consequence. The woman, 32 weeks pregnant with twins, was informed that one of her twins suffered a congenital heart condition that would require years of operations – if he survived at all. On medical advice, she decided to terminate the unhealthy twin. During the abortion, the wrong twin was injected, and the healthy foetus was terminated. The mother was then required to have an emergency caesarean to abort the unhealthy foetus.
My maternal instincts may not yet have kicked in, but I can fully empathise with the horrible emotional tempest of loss, sadness and anger the family would be dealing with. But the thinker inside me questions how words like ‘dead’ and ‘killed’ are being thrown around, and what the legal ramifications for the hospital staff might be.
The media headlines so far include:
“Twins die in tragic hospital bungle”
“Hospital kills wrong twin in abortion, both babies now dead,”
“Medical bungle kills healthy foetus”
“Healthy twin dies in aborted bungle”
“Horror: 32-week unborn twins killed after hospital accidently aborts healthy baby”
(Keep in mind that the story would not have been news at all, if the procedure had gone successfully and only one foetus had been aborted. It is interesting to note, that one sick foetus’s abortion is a ‘termination’, while the other is a killing, a death, when in reality, both foetus’s were developmentally identical.)
If we accept the media’s account that the twin was ‘killed’ at the hands of another, then doesn’t it follow that the doctor then be charged with murder?
According to Sir Edward Coke’s 1797 definition of murder, a child in utero is not deemed a ‘reasonable creature in being’ until it is ‘born alive’.
The born alive rule maintains that a child can only be a victim of murder if the child has an independent existence from its mother. That is, death must occur after ‘the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs’. This ‘born alive’ rule still prevails today in Australian law, despite being overturned inAmericaandCanada.
For example, in the 2003 case of R v King in New South Wales, a person deliberately caused the stillbirth of a pregnant woman by kicking and treading on her stomach. Under the born alive rule, the defendant was only charged with grievous bodily harm to the mother, not the murder of the foetus. 
So has a death occurred inMelbournetoday? If death is merely ceasing to exist, to function physiologically, then the foetus has died and someone should be responsible. But the foetus was fully-reliant on the mother’s womb, they certainly had no personality, arguably no intellectual capacity. Did they have a life per se to end? Although a future has been lost, has a life?
Under the born alive rule, there has been no death, at least of legal or ethical concern. The problem with the born alive rule is that there is almost no physiological or intellectual distinction between a near-term foetus and a newborn infant.
The story is heart wrenching, of that there is no doubt. But at least legally, the death is not of two people, but of two futures.