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Prenatal Protection Revision

S.B. 346 of 2002
P.A. 164 of 2002
MCL 600.2922a
Sponsor: Sen. Bill VanRegenmorter

Effective Date: April 11, 2002

S.B. 71 of 2001
P.A. 1 of 2001
MCL 750.90a-e
Sponsor: Sen. Bill VanRegenmorter

Effective Date: June 1, 2001

These laws provide for a range of criminal and civil charges to be brought for causing the death of a child in utero by killing the mother.

In an Oakland County murder case in 2000, a man was convicted of shooting his wife after learning she was pregnant with their second child. Oakland County Prosecutors filed homicide charges for the death of both the woman and her unborn child. The defendant was successful in having the charge for the child's death dismissed on a technical interpretation of the law. The trial judge read the language of the statute narrowly, which specifically states that an action is criminal if it causes a "stillbirth or miscarriage." Since the child died in utero with the mother's instantaneous death, the child was never "expelled" from the uterus as in a miscarriage or stillbirth. The judge determined the in utero death to be neither a miscarriage nor a stillbirth.

These laws amend the Prenatal Protection Act by clarifying that causing a miscarriage, stillbirth or "death of the embryo or fetus" will be termed a criminal action. The language will eliminate any distinction about whether the child is ever expelled from the mother’s body after dying in utero.

The law will still exempt actions by the mother or a legally allowable medical procedure to which the mother has consented. There are no constitutional implications regarding abortion, as at least two Michigan defendants have made such challenges under the law, and both have been rejected by the trial courts.


Prenatal Protection Act

S.B. 21 of 1998
P.A. 238 of 1998
MCL 750.90a-f
Sponsor: Sen. Bill VanRegenmorter

Effective Date: January 1, 1999

The arbitrary distinctions that were in Michigan law prior to the passage of these laws created a great injustice to parents who lost their child due to another's malicious or negligent actions. As a result of the formal request that Michigan courts made of the Legislature to correct these gaps in the law, Sen. VanRegenmorter introduced S.B. 21. This bill provides for a range of criminal charges to be brought for actions or negligence upon a pregnant woman which leads to the injury or death of the child she carries. It only applies when a criminal action currently defined in the penal code is taken against a pregnant woman. Vehicular homicide laws also are included. The degree of penalty is determined by the resulting injury to her fetus.


Prenatal Protection Act

Current Status

The Prenatal Protection Act originally took effect on January 1, 1999. The law allows for separate charges to be brought when a criminal action against a pregnant woman results in death or injury to her unborn child. A loophole was "discovered" in the law during a murder case in 2000, where a man murdered his wife and unborn child. The Act originally declared that causing a "miscarriage or stillbirth" was a criminal offense. Because the pregnant woman died instantly, never expelling the unborn child in a miscarriage or stillbirth, the judge ruled the law had not technically been violated. Charges for the death of the unborn child were dropped.

The court's ruling prompted Senator Bill Van Regenmorter to introduce Senate Bill 71, on January 31, 2001 to close the loophole. The bill clarified that "causing the death of an embryo or fetus" is a criminal offense. The Senate Judiciary Committee approved the bill 5-0 on February 7, 2001, with the full Senate unanimously approving it, 32-0, on February 15, 2001. The House Criminal Justice Committee approved the bill 8-0 on March 6, 2001. The House gave final passage to S.B. 71 on March 8, 2001 by a vote of 84-21. Governor Engler signed S.B. 71 into law on April 17, 2001 as Public Act 1 of 2001.

On March 20, 2001, Sen. Van Regenmorter introduced S.B. 346 to allow families to file a civil lawsuit against a person who caused the death of an unborn child through a criminal or negligent act. The Senate Judiciary Committee held a hearing on the bill on September 19, 2001 and voted it out to the full Senate floor where it passed unanimously on October 2. The bill was passed to the House floor by the House Civil Law & the Judiciary Committee on October 16 where it was passed 78-22. Governor Engler signed the bill into law on April 16, 2002 as Public Act 0164'02.

History

In February of 1997, after over three years of attempting to provide protection from criminals for the unborn, Senator Bill VanRegenmorter introduced S.B. 21. This bill is the same as his original bill (S.B. 515) which passed in the Senate's previous session but died in the House.

On March 4, 1997, S.B. 21 was reported from the Senate Judiciary Committee by a vote of 5-1. Representative Nick Ciaramitaro has also prepared a bill which will allow for civil lawsuits to be brought for causing the death of an unborn child.

S.B. 21 received unanimous approval (36-0) in the state Senate on March 27, 1997. The vote came after a substitute bill was negotiated drawing the support of all but one pro-abortion senator. H.B. 4524, sponsored by Rep. Nick Ciaramitaro was introduced in the House on March 20, 1997. 

On April 22, 1997, a lengthy hearing on S.B 21, H.B. 4524 and H.B. 4476, the pro-abortion alternative to S.B. 21, was held in the House Judiciary Committee. The pro-abortion chair of the committee, Representative Ted Wallace, announced that he would form a work group to negotiate a compromise between S.B. 21 and H.B. 4476. 

By November 1997, the "behind-the-scenes" negotiations to move the bills proved unfruitful, prompting RLM to mount an effort to discharge the bills from the committee, allowing a House floor vote before the Christmas recess.

Finally, in December, negotiations led to success in getting S.B. 21 and H.B. 4524 on the agenda in House Judiciary Committee. But shortly before the committee meeting began on December 9th, Rep.Wallace announced that the bills would not be voted on. This about-face was a betrayal to the bill sponsors and the Speaker of the House.

In January 14, 1998, a "work group," delegation of prolife and pro-abortion House members, met to negotiate a possible agreement that would move the bills with consensus. Little progress was made initially, however regular meetings were continued.

On May 6, 1998, after two days of haggling over pro-abortion amendments, the House Judiciary Committee reported out S.B. 21 and H.B. 4524.  The versions of the bills reported were results of the "work group" negotiations.

On May 27, 1998, the House overwhelmingly passed S.B. 21 (which unanimously passed the Senate on 3/27/97), by a vote of 80-24, and H.B. 4524, by a vote of 77-27. The following day the Senate Judiciary Committee took up H.B. 4524 and reported it to the Senate floor.

On June 10, 1998, the Senate concurred on the House amendments to S.B. 21, by a vote of 29-8, and passed H.B. 4524, by a vote of 28-3.

On July 7, 1998, Governor John Engler signed the Prenatal Protection bills. The bills took effect on January 1, 1999.

Background

Prior to enactment of the Prenatal Protection Act, Michigan law was guided by a series of court cases deal with injury and death an unborn child. Those court cases upheld a centuries-old legal standard call the "born alive" rule. That rule held that unless a child were first born alive and then died as a result of the prenatal assault, charges could not be brought. The rule was based on the evidentiary limitations of proving that the child was actually alive at the time of the assault, and that the assault was the cause of the child's death in utero. The Prenatal Protection Act, as created by S.B. 21 and amended by S.B. 71, overturns the "born alive" rule, allowing one set of charges for the assault on the woman, and a second set of charges for the injury or death to her unborn child.

In similar fashion, Michigan's "wrongful death" law limited the ability of parents to bring a civil lawsuit for monetary damages against someone who caused the death of their unborn child. Michigan courts modified the born alive rule in these cases to allow lawsuits for the wrongful death of an unborn child if the child were "viable" at the time of death (viable meaning able to survive outside the mother's body). H.B. 4524 expanded the wrongful death law, allowing suits to be filed at any stage of the pregnancy, regardless of viability.

For relevant courts cases see, People v. Guthrie; Larkin v. Calahan; Fryover v. Forbes; Toth v. Goree.

See also Manslaughter of a "Quick" Child

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