Pubdate: Fri, 18 May 2001
Source: National Post (Canada)
Copyright: 2001 Southam Inc.
Contact:  http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Authors: Les Perreaux and Chris Wattie, National Post

U.S. CRACK ADDICT FOUND GUILTY OF HOMICIDE IN DEATH OF FETUS

An American First

A woman has been convicted of killing her unborn child by using crack 
cocaine during her pregnancy in what is believed to be the first such 
homicide conviction in the United States.

A jury in Conway, S.C., found Regina McKnight, 24, guilty Wednesday after 
only 15 minutes of deliberations. She was sentenced to 12 years in prison, 
although she could have faced a life sentence.

"A child ended up dead," said Bert von Herrmann, the prosecutor.

"She smoked cocaine as much and as often as she could ... if that's not 
extreme indifference to life, I don't know what is."

South Carolina law considers a fetus in the third trimester a person, and 
state prosecutors have in the past charged mothers with child abuse, 
distributing drugs to a minor and murder if they believed the women were 
harming their fetuses.

The case opens the door to prosecuting pregnant women for any activity 
considered injurious to a fetus, including smoking, drinking or 
participating in athletics, according to Lynn Paltrow, of the group 
National Advocates for Pregnant Women.

She said the law has been applied to a woman whose child was born in 1998 
with fetal alcohol syndrome.

The law was also considered this year when a woman in a South Carolina 
hospital refused to submit to a Caesarean section after 40 hours of labour.

McKnight's lawyers said they will appeal the verdict.

McKnight's baby was stillborn in 1999 at 35 weeks. McKnight is the mother 
of three other children and is two months pregnant.

The U.S. Congress has passed bills that define fetuses as human beings, 
making it a federal crime to harm a fetus at any stage of development. The 
U.S. Supreme Court, however, has never accepted the definition of a fetus 
as a human being.

Dr. Margaret Somerville of the McGill Centre for Medicine, Ethics and Law 
said such a prosecution could not happen in Canada under current law.

"The Criminal Code in Canada says you don't become a human being until you 
are delivered from the body of your mother," she said. "Under our law, no 
child exists until it's born. How can you abuse a non-existent child? You 
can have an abortion the day before you give birth in Canada."

Dr. Somerville said many U.S. states have written laws to protect fetuses 
from the harmful behaviour of their mothers, including many that allow 
women to be jailed for the duration of their pregnancies. "They've 
basically extended the definition of child abuse," she said.

She believes that sometimes action must be taken to protect unborn 
children. "My own view is that when you see a woman who you know for sure 
is going to give birth to that kid and you know that they are just 
destroying it before it's had any chance, some limitation on the woman's 
freedom could be justified."

Many of the U.S. laws are aimed at attacking abortion rights or drug abuse 
more than protecting unborn children, Dr. Somerville said.

"They're very busy with these laws, and sometimes they're very 
self-righteous about them. Most of us would agree, whatever we think about 
the fetus, that the right way to go about this is to make sure that women 
have access to treatment and support they need."

In Canada, the case of a Winnipeg woman in 1996 drew national attention to 
the problem of expectant mothers who are also substance abusers.

A judge committed the 22-year-old pregnant woman, who was addicted to 
sniffing glue and solvents, into the care of the Winnipeg child and family 
services agency until the baby was born.

Social workers had been concerned about damage her glue-sniffing was doing 
to her fetus. At the time of the unprecedented order, the woman was five 
months pregnant and already had three other children -- two of whom 
suffered brain damage traced to her sniffing of glue, paint thinner and 
nail-polish remover.

However the Manitoba Court of Appeal stayed the lower court order and the 
Supreme Court of Canada later agreed the woman could not be forced into 
treatment.

Justice Beverley McLachlin, writing for the majority, said rewriting the 
law to allow pregnant women to be detained against their will and forced to 
undergo treatment would force judges to confront "a web of thorny moral and 
social issues" better dealt with by elected politicians.

The two dissenting judges concentrated on the fetus. "Someone must speak 
for those who cannot speak for themselves," wrote Justice Jack Major, 
supported by Justice John Sopinka.

"Society does not simply sit by and allow a mother to abuse her child after 
birth. How then should serious abuse be allowed to occur before the child 
is born?" Justice Major wrote.

In Canada there have been a few cases where damaging a fetus has resulted 
in legal action. Dr. Somerville said there are cases where child protection 
officials have seized babies based on abuse during pregnancy.

A person who harms a woman's fetus can also be charged with homicide under 
the Criminal Code, but only if the baby is born and subsequently dies from 
the wound.
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