3. Convictions Under The “Born Alive” Rule
Many courts have upheld homicide convictions when the unb orn child
was injured and then born alive before its death. 42 In State v. Cotton,43 the
defendant accidentally shot his girlfriend, who was eight and a half
months pregnant, in the back of the head. 44 While the girlfriend died
shortly after the accident, the child was born alive and died the next day. 45
The Arizona Court of Appeals concluded that the child was a “person”
under Arizona’s homicide statute 46 and held “that Arizona’s homicide
statutes apply to the killing of a child who is born alive even if the death
results from injuries inflicted [by the defendant] before birth.” 47 Thus, the
defendant could be charged with the child’s murder. 48
In People v. Taylor, 49 the defendant punched his girlfriend, who was
seven months pregnant, once in the head and six times in the stomach. 50
The defendant yelled, “I don't want this baby. I don't want this bitch to
have my baby.” 51 Later the same day, the child was delivered by
Caesarean section, but the baby died one month later due to injuries
sustained while still in the womb. 52 The California Court of Appeals
concluded that if “(1) a defendant, acting with malice aforethought toward
the fetus in a woman's womb, assaults the woman; (2) in consequence, the
fetus must be delivered prematurely; and (3)
the fetus is born alive but
later dies of causes to which the pr ematurity contributed substantially, the
defendant has murdered a human being.” 53 The court opined that the
timing of the defendant’s actions was i rrelevant and instead held that the
victim’s status as a human being at the time of death was determinative.5
In State v. Horne, 63 Horne attacked his wife who was nine months
pregnant with a knife. 64 A lower court convicted him of assault and battery
with intent to kill and voluntary manslaughter with respect to the unborn,
full-term, viable female child.65 The issue before the South Carolina
Supreme Court was whether an unborn child was a “person” within South
Carolina’s murder statute. 66 The court had previously determined that a
wrongful death action “could be maintained for a viable, unborn fetus”
