Report Title:

Crimes; Viable Fetus

 

Description:

Amends the definition of "person" for purposes of offenses of murder, manslaughter, and negligent injury to provide protection for a viable fetus.  Defines "viable fetus."  Adds provision that gestational age of 24 weeks or greater is prima facie that fetus is viable.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

731

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to offenses against the person.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The purpose of this Act is to address several issues raised in the Hawaii supreme court's holding in State v. Aiwohi, 123 P.3d 1210 (2005).  In Aiwohi, the issue before the court was whether a mother can be charged with manslaughter for recklessly causing the death of her newborn baby by the prenatal ingestion of crystal methamphetamine.  Since Hawaii's manslaughter law requires that a defendant's conduct recklessly cause the death of "another person," the key issue before the court was the definition of "person."  The court determined that "person," as used in the Hawaii Penal Code, means a human being who is born and is alive and thus does not include a fetus.  Because the mother's culpable conduct, i.e., the use of crystal methamphetamine, occurred prior to her baby's birth, she could not be held criminally liable under Hawaii's manslaughter statute since her conduct was not directed at a "person."  Thus, under the Aiwohi decision, there cannot be any criminal liability for any prenatal conduct directed against a fetus.

     However, the State has a compelling and legitimate interest in protecting fetal life from the point of viability.  "This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb.  State regulation protective of fetal life after viability thus has both logical and biological justifications." Roe v. Wade, 410 U.S. 113, 163, 93 S. Ct. 705, 732, 35 L. Ed. 2d 147, 183 (1973).  Balancing the State's interest in protecting the potentiality of human life and the mother's right to reproductive autonomy, this Act defines "viable fetus" and criminalizes third party conduct against a viable fetus.

     Specifically, this Act includes a viable fetus in the definition of "person" for purposes of the offenses of murder, manslaughter, assault, negligent homicide, and negligent injury and criminalizes third party conduct that causes the death of, or serious or substantial bodily injury to, a viable fetus.  It also holds a third party culpable for causing the death of, or substantial or serious bodily injury to, a live baby when the conduct causing the death or injury occurred prior to birth but after the fetus became viable.  The mother of the fetus and licensed medical personnel conducting lawful medical procedures requested by the mother or necessary to save her life are not third parties who may be held criminally liable under this Act.

     It is not the purpose of this Act to impair a woman's right to choose whether or not to continue her pregnancy.  Rather, the purpose of this Act is to criminalize the acts of a third party who, without the mother's consent, kills or injures her viable fetus.

     SECTION 2.  Chapter 707-700, Hawaii Revised Statutes, is amended as follows:

     1.  By adding a new definition to be appropriately inserted and to read:

     ""Viable fetus" means a fetus that, at the time of the actor's conduct toward the fetus, has a reasonable likelihood of sustained survival outside the womb with or without the aid of standard medical measures; however, the live birth or the actual survival of the fetus shall not be required for the fetus to be deemed viable."

     2.  By amending the definition of "person" to read:

     ""Person" means a human being who has been born and is alive[.]; provided that for the purposes of sections 707-701(1)(a), 707-701.5, 707-702(1)(a), 707-702.5, 707-703, 707-704(1), 707-705, 707-706, 707-710, 707-711(1)(a) and (b), "person" shall also include a viable fetus whose death, serious bodily injury, or substantial bodily injury is caused other than by:

     (1)  The mother of the fetus; or

     (2)  Licensed medical personnel conducting a lawful medical procedure requested by the mother or necessary to save her life."

     SECTION 3.  Chapter 707, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§707-     Viable fetus; prima facie evidence.  It shall be prima facie evidence that a fetus is capable of sustained survival outside the womb with or without the aid of standard medical measures when the fetus has reached a gestational age of twenty-four weeks or greater."

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.


     SECTION 6.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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