Texas' Prenatal Protection Act: Civil and Criminal Fetus Fatality Protection

Article excerpt

I. INTRODUCTION ................................. 268

II. BACKGROUND AND IMPETUS FOR THE ACT................. 268

??. RIGHTS PROTECTED UNDER TEXAS PRENATAL PROTECTION ACT ....................... 269

A. Criminal Proceedings: Constitutional Considerations Regarding the Unequal Application for Men and Women ............. 271

B. Embryonic Implications: Do Fertilized Embryos Count as "Individuals" Under Texas Law? ....................... 273

C. Drug Prosecution: Abusing the Texas Prenatal Protection Act to Prosecute Drug Users .......................... 275

D. Limited Civil Application of the Prenatal Protection Act: Parents Recovering Damages from the Loss of a Fetus ............. 277

i. Civil Proceedings: Courts' First Objection - Nonapplication to Physicians ...................... 278

ii. Civil Proceedings: Courts' Second Objection - Constitutional Questions ........................ 278

!Y. CONCLUSION ........................................................... 279

I. INTRODUCTION

Within the last ten years, thirty-eight states, along with Congress, have enacted laws that protect the lives of unborn fetuses, and Texas is no exception.1 With the 2003 enactment of the Prenatal Protection Act, Texas joined the other thirty-seven states in their campaigns against drunk drivers, abusive spouses, and other individuals who threaten the well-being of fetuses. Not only does Texas' Prenatal Protection Act allow criminal penalties for the murderers of fetuses, but, for the first time, it also allows civil penalties under wrongful death statutes.2

While Texas' Prenatal Protection Act has good intentions - to protect unborn children and to give civil suit rights to their grieving parents - it also contains major flaws and loopholes with highly controversial implications in four specific areas of the law.

First, the Prenatal Protection Act allows for the unequal application of the law for males and females. In a recent case facing the Texas Court of Criminal Appeals, the court found the father - but not the mother - guilty of murder when they conspired to abort their late-term fetus with an "unorthodox procedure" by jumping on and striking the mother's abdomen.3 Second, under the technical language of the Prenatal Protection Act, a couple who freezes their embryos and later decides to discard them causes the "death" of the fertilized embryo and may therefore be implicated in murder or wrongful death of the fetus under the Prenatal Protection Act. Third, even though the Prenatal Protection Act specifically protects the actions of the mother, certain Texas counties have begun to use the Prenatal Protection Act to charge pregnant women who imbibe illegal drugs with delivering controlled substances to minors. Fourth, in civil court, the application of the Prenatal Protection Act has been unsuccessful; with the lingering scent of Roe v. Wade, courts have been hesitant to acknowledge parents' rights to sue for wrongful death of unborn fetuses.

Therefore, not only does the Act unequally implicate men and women in certain situations, but it may also threaten innocent infertility patients who have simply frozen too many embryos. The Prenatal Protection Act's imperfect application and loopholes unfairly encroach on individual rights.

II. BACKGROUND AND IMPETUS FOR THE ACT

A mass media scandal prompted thirty-eight states to change their laws after 2002 when Laci Peterson, a seven-months pregnant, white, middle-class young woman went missing and her husband was later found guilty of her murder.4 Because California law recognized Laci Peterson's unborn fetus as an "individual," a California jury convicted her husband Scott Peterson not only of first-degree murder of his wife but also seconddegree murder of their full-term, unborn son and subsequently put Scott Peterson on death row.5

Shortly after this case, thirty-seven states, including Texas, enacted laws aimed at protecting fetuses and classifying the death of a fetus as murder under most circumstances. …