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staff reporter Carla T. Main edits the opinion pages of The National Law Journal. She can be reached at Two events last week highlight the confusion and contradictions that abound in this country over the legal status of unborn children and the relationship between mother and child. A California district attorney said that he will seek the death penalty against Scott Peterson in the alleged double murder of his wife and unborn son. An intermediate appellate court in New York ruled that a woman who miscarried 18-week-old twins (one delivered into her own hand in her bathroom at home) due to the alleged negligence of her doctor, may not recover for mental anguish because she herself suffered no injury. The court drew two curious and confusing conclusions in the latter case, Fahey v. Canino. It held that Debra Ann Fahey could not recover for the emotional distress she felt over the plight of the babies, under the logic that they were separate persons from herself (although they lacked standing to sue). The court also held that Fahey was required, but had failed, to show an independent physical injury “from something that happened to her personally.” The court found that her premature labor and subsequent surgery were not an injury to her. Surprisingly, the court did not even consider whether the physical loss of the twins was an injury, apparently deeming the loss of a pregnancy less comparable to losing a body part and more akin to tossing out trash. Had Fahey’s eyeball popped out from botched surgery or her arm been cut off in an accident, no one in his right mind would argue that she suffered no injury or that such injuries had not “happened to her personally.” But the court did not see it that way because a larger ideological influence is at work here. If we look back at the “it’s-my-body” mantra of the pro-abortion rights movement, we can see that in order to make abortion palatable, the argument had to be driven home that the fetus is worthless (no matter what the stage of gestation) and the maternal emotions involved are minimal in comparison to an unwanted pregnancy. Since Roe, this message has become so pervasive that it is part of American culture. Motherhood and natural maternal feelings have been so denigrated that the loss of an 18-week pregnancy is not a legally cognizable loss-emotional nor physical-to either the mother or the twins. Even worse, such a result has become socially acceptable. While the intended policy of Roe may have been to empower women, it has also had the unintended consequence (and that’s a benign interpretation, as some might say that the feminist movement was aiming for this all along) of institutionalizing the notion that all unborn life is worthless and that maternity is not a profound human experience. Hence we have a court system-in some appellate divisions of New York at least-that would give greater compensation to a woman for the loss of her little toe than for 18-week-old twins. This way of thinking is inherently contradictory and harmful to women: It recognizes only a woman’s distress at not being able to abort a pregnancy, while dismissing her quite natural distress over the loss of a pregnancy that was very much wanted. Fahey’s lawyer, Patricia Cummings, said, “This woman didn’t choose to end this pregnancy.” And yet she is without recourse. What Fahey suggests is that while a pregnant mother has complete dominion to rid herself of an 18-week old fetus, she has no power to protect it through a body of case law and public policy aimed at holding doctors accountable for what happens to the unborn child. The perverse result is a situation in which the doctor is not answerable to either the mother or the child for his alleged negligence. That’s bad public policy. Indeed, this paradox was noted by the dissent in Tebbutt v. Virostek, a similar case that came before the New York Court of Appeals in 1985. The unborn child occupies a strange netherworld in American legal thinking, which has not consistently and coherently recognized the unique nature of the relationship between a woman and an unborn baby, who are exquisitely intertwined, separate and one at the same time. While some states recognize a cause of action for stillborn birth and criminal liability for crimes against an unborn child, many others do not. Clearly, the law is not such a blunt instrument that it cannot accommodate the unique nature of pregnancy. It only requires a modicum of decency and common sense. Perhaps Chief Judge Judith Kaye, who dissented in Tebbutt, will chart that course for New York-keeping in mind the virtues of fairness and real respect for women-if and when Fahey arrives at the state’s highest court.

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