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State v. Deborah J.Z.5/26/1999
nally, the prosecution of a pregnant woman for prenatal behavior which affects the health of the unborn child reveals significant public policy implications. Many health officials agree that substance abuse in pregnant women is better addressed through treatment rather than the threat of punishment. Another area of concern is that the imposition of criminal sanctions on pregnant women for prenatal conduct may hinder many women from seeking prenatal care and needed medical treatment because any act or omission on their part may render them criminally liable to the subsequently born child. Obviously, these are complex and controversial public policy considerations; therefore, it is appropriate for the courts to defer to the legislature. We do so because "the legislature is in a better position than the courts to gather, weigh, and reconcile the competing policy proposals addressed to this sensitive area of the law." Kruzicki, 209 Wis.2d at 134, 561 N.W.2d at 739.
Furthermore, the Conclusion that these statutes were not intended to apply to conduct harming an unborn child is supported by the existence of abortion statutes that prohibit prosecuting a mother for aborting her unborn child. See §§ 940.13, 940.15(7), Stats. These statutes more appropriately address the present situation-one where a mother intends to harm her unborn child-and exempt a pregnant woman from prosecution.
In the alternative, if the plain language of the statutes does not apply to an unborn child, the State asserts that because the unborn child survived and was successfully delivered, the "born alive" doctrine permits prosecution. Thirty-one states, by judicial decision, have adopted the "born alive" rule that if an unborn child suffers a prenatal injury at the hands of a third party and is born alive, certain civil or criminal charges may be brought against the third party. See Tony Hartsoe, Person or Thing-In Search of the Legal Status of a Fetus: A Survey of North Carolina Law, 17 Campbell L. Rev. 169, 212 & n.233 (1995) (listing cases). Accordingly, the State argues that after the birth of M.M.Z., the applicable criminal statutes for a "born alive" child take effect. However, the State fails to point to a case with a situation, similar to this, in which the rule has been applied for self-abuse by the mother which negatively impacts an unborn child, later "born alive."
Specifically, the State posits that holding mothers accountable for injuries they inflict on their children prenatally is the next logical step beyond the courts' application of the "born alive" rule to third parties in State v. Cornelius, 152 Wis.2d 272, 282-83, 448 N.W.2d 434, 438 (Ct. App. 1989). In Cornelius, the defendant was charged with homicide by intoxicated use of a motor vehicle for the subsequent death of an unborn child after it was involved in an automobile accident resulting from the defendant's intoxicated driving. See id. at 274-75, 448 N.W.2d at 435. Immediately after the accident, the unborn child was delivered at the hospital, but it died soon thereafter from injuries suffered in the auto accident. See id. at 275, 448 N.W.2d at 435. We upheld the homicide charge, reasoning that the unborn child qualified as a "human being" under § 939.22(16), Stats., because it was alive at birth. See Cornelius, 152 Wis.2d at 277, 279, 448 N.W.2d at 436-37. We also stated, "Our decision does not reach the issue of the rights of a fetus, and certainly does not discuss its rights vis-a-vis the mother. [The victim] was born alive and died as a result of injuries sustained in utero, and our decision should not be read more broadly than to allow a homicide charge under these circumstances." Id. at 282-83, 448 N.W.2d at 438.
In Cornel
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