Johnny Michael Sakr
Adjunct Lecturer, University of Notre Dame, University of Southern Queensland, Sydney Australia
The legal standing of prenatal human beings (also referred to as a foetus(es) or an unborn child(ren)) in New York as a victim of homicide has gradually changed over time. That is, legal standing has been, and is, contingent upon different factors that have changed (‘Contingent Factor’). Historically, the Contingent Factor was not based upon the mother’s consent however, now it is; although, foetal victimhood should not depend on whether the mother has consented to have an abortion or not. When s 125 of the New York Penal Law (1965) (‘Act’) was enforced, which can be traced to an 1869 enactment, neither the mother’s consent to procure an abortion or the foetus’ status of personhood or species membership was taken into consideration in determining foetal victimhood. However, the decision in Roe v Wade (1973), in conjunction with the Act’s repeal by the Reproductive Health Act (2019), unborn children are now no longer considered victims of homicide in abortion cases and the Contingent Factor now hinges upon mother’s consent, to which I disagree. If the above hypothesis is true, then establishing foetal personhood and species membership are not necessary conditions for providing unborn children with victimhood in an abortion. Though they may be sufficient conditions, they are not necessary. Therefore, the debate surrounding the topic of abortion should be focused upon the following proposition – a foetus’ legal standing as a victim of homicide is contingent upon the mother’s will. This should not be the case.
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