In an article published in the Jamaica Gleaner published on November 1, Children’s Advocate Diahann Gordon-Harrison proposed that the existing law be changed in order to establish culpability for persons who have caused the expulsion of a foetus by murdering its mother while still pregnant. The Children’s Advocate, who is a learned attorney-at-law and former prosecutor, made these submissions before a Parliamentary committee reviewing sensitive pieces of Criminal Legislation, namely the Offences Against the Person Act and the Sexual Offences Act, among other pieces of legislation.
Why has the Children’s Advocate made these submissions? Since assuming the role in 2012, she has had the misfortune of experiencing the brutal deaths of 5 pregnant women were killed in that year alone. Surely, it is unfortunate and heinous when any woman who is carrying a child is killed and the foetus expelled without life. It is through this same premise, I believe, that the Children’s Advocate believes that those who murder pregnant women should be held responsible for the murder of two persons in one incident.
As it stands statutorily, Sections 72 and 73 of the Offences Against the Person Act criminalizes abortion in Jamaica. There is no other such offence relating to the expulsion of dead foetuses. When we examine the law of murder in relation to unborn foetuses, we note that the lack of legal attention to foetuses deepens. For the purposes of this article, let us go back to the ancient common law definition of murder.
According to the definition made in 1797 by Sir Edward Coke, which, I dare say, is one of the highlights of Criminal Law class, murder is:
“when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.”
Through the definition of murder by Coke, it has been established in English Courts that foetuses do not qualify as “human beings”, and as such, persons cannot be held guilty for murdering them.
This was affirmed in the famous case of Attorney-General’s Reference where the accused was found not guilty of murder by the House of Lords when he caused the death of a foetus by causing serious injury to the mother. The Court in that case also overturned the decision of the Court of Appeal in that in order for a newborn child to be considered a human that is capable of being murdered, he/she has to be fully expelled from the uterus and exist wholly and independently of the mother before he/she can be considered a human being.
There is yet another dent in the Children’s Advocate’s plea for the law to be changed. As a part of her submissions, she has expressed the belief that “life begins at the point of conception and as such, a foetus represents another life that, if lost due to the deliberate action of another who intends to cause death or grievous bodily harm, that act ought to be punishable”.
This belief that life begins at conception is not supported by our common law, neither is it supported by statute. In order for the Children’s Advocate’s dream to be realized, more than one area of law would be changed. It would, from my estimation, require a comprehensive change to the LOCAL definition of the law of murder, where we would either have to rearrange or totally replace Sir Edward Coke’s definition of the law of murder in order to redefine foetuses as human beings.
How would the Children’s Advocate’s belief influence the very hot and controversial abortion debate, which is another issue being debated before the Parliamentary Committee? Is it that with this belief that life begins at conception, the Children’s Advocate is aligning herself and her office with the view of the Conservatives and the Christian community and therefore going against abortion? Does she disagree with the view of many women’s rights groups that a woman should have the right to choose what she does with her body?
Now, I hope not to be regarded as paranoid, sexist, or chauvinistic by tying this issue to something as abortion, but I believe that the issues have become linked. Not only is this an issue one of the pregnant woman as the Children’s Advocate has enunciated, but also, and more importantly, it is an issue about the baby that was to be born alive but unfortunately wasn’t.
It therefore brings us to this point: Can the law be changed? Is it desirable to have it changed? Based on the ruling made by the House of Lords in Attorney-General’s Reference (No. 3 of 1994), one cannot be charged for murder of the foetus, but he can be charged for manslaughter, if he has satisfied all the elements for constructive manslaughter, as the accused in that case did. It is possible that, in the alternative to finding the person guilty of murder, those common law principles may be used in court, or perhaps even codified to hold the accused liable for murder of the mother and the manslaughter of the foetus. That way, we may not have to redefine the definition for murder or make sweeping changes to the law.
If you happen to agree with the Children’s Advocate that the accused should be charged with murder of the foetus, then sweeping changes would have to be made to the Offences Against the Person Act where foetuses are re-defined as persons who are capable of being murdered. On that side, we can also go further and propose that where it has been proven that the accused intended to kill, or even injure, the mother in the furtherance of killing the foetus, that he be convicted of murder. This alternative option or viewpoint would effectively overrule Attorney-General’s Reference (No. 3).
Whichever way you may choose to take by the time you finish reading this article, I commend the Children’s Advocate for contributing to the debate and for her rigorous, proactive leadership in securing justice for, and happiness of our nation’s children and I hope that, should the law be changed, it will be to the benefit of all our nation’s children, both born and unborn.
Second Year Law Student
Faculty of Law, UWI Mona
Contributor, Mona Law Precedent
Member, Publications Committee
© Markel A-O Virgo
 (No. 3 of 1994) 1998 AC 245