Born alive rule

The "born alive" rule is a common law legal principle that holds that various criminal laws, such as homicide and assault, apply only to a child that is "born alive". U.S. courts have overturned this rule, citing recent advances in science and medicine; and in several states, feticide statutes have been explicitly framed or amended to include fetuses in utero. Abortion in Canada is still governed by the born alive rule, as courts continue to hold to its foundational principles. In 1996, the Law Lords confirmed that the rule applied in English law but that alternative charges existed in lieu, such as a charge of unlawful or negligent manslaughter instead of murder.

The born alive rule was originally a principle at common law in England that was carried to the United States and other former colonies of the British Empire. First formulated by William Staunford, it was later set down by Edward Coke in his Institutes of the Laws of England. It follows the language used for cases of murder in English law, identifying three salient characteristics.

1. a reasonable creature, 2. in rerum natura (in natural being); and 3. in the King's peace.

Coke says:

The term "reasonable creature" echoes the language of an influential strand Catholic doctrine on the nature of the soul and the Beginning of human personhood which generally adopted Aristotle in holding that it is the "rational soul" that infuses the fetus with "human beingness". There was disagreement as to whether this occurred at the moment of conception, or at the moment of quickening, as Aristotle had held. As for rerum natura, William Staunford had explained "the thing killed must be in part of the world of physical beings (in rerum natura). This has been interpreted as meaning completely expelled from the womb. Finally, the "thing killed" must be in the King's peace, i.e. in a situation where the protection of the King's peace applied. An outlaw, for instance, was not in the King's peace, and not subject to protection of the law.

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