–by Chris Powers
Abstract: The New York Court of Appeals ruled that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence because criminalizing negligence in this context gave too much discretion to prosecutors.
The New York Court of Appeals ruled last month in People v. Jorgensen that a mother cannot be held liable for the death of a newborn baby when the baby’s injury was caused by the mother’s prenatal negligence.
Jorgensen was 34 weeks pregnant when the car she was driving entered the oncoming lane of traffic and struck a vehicle head on, killing both occupants of that vehicle. Jorgensen was taken to a hospital, where tests revealed probable fetal injuries. She consented to an emergency C-section, and the baby was delivered. The baby died six days later and an autopsy confirmed that the cause of death was injuries sustained the automobile accident.
Jorgensen was subsequently indicted on three counts of manslaughter in the second degree, one for each occupant of the other vehicle and one for the baby. At trial, the prosecution’s theory was that defendant was speeding and under the influence of prescription drugs when she struck the vehicle. Upon impact, the fetus was injured when the defendant, who was not wearing a seat belt, hit the steering wheel. The first jury was unable to reach a verdict, but a second jury acquitted her of two counts but convicted her for the death of her child. The Appellate Division affirmed the trial court.
The Court of Appeals reversed by a 5-1 vote, holding that “it is evident from the statutory scheme that the legislature . . . did not intend to hold pregnant women criminally responsible for conduct with respect to themselves and their unborn fetuses unless such conduct is done intentionally.” The majority analyzed multiple provisions in the New York Penal Law to reach the conclusion that the legislative intent in making the relevant laws was to require intentional behavior, not mere recklessness, by a pregnant woman to hold her criminally responsible for harm to themselves and their unborn children. Specifically, the majority found that the legislature had explicitly included criminal liability for harm to unborn fetuses in circumstances relating to self-abortions, so the legislature clearly had contemplated prenatal acts in devising the statute. The fact that reckless and negligence were not included, the majority contended, was not an inadvertent omission; the legislature must have meant to exclude it.
Next, the majority gave a policy reason for reaching its result, saying, “The imposition of criminal liability . . . [should] not be left to the whim of the prosecutor.” As the majority argued, a pregnant woman’s reckless behavior could be stretched by an ambitious prosecutor to include “disregard[ing] her obstetrician’s specific orders concerning bed rest; tak[ing] prescription and/or illicit drugs; shovel[ing] a walkway; engag[ing] in a contact sport; carry[ing] groceries; or disregard[ing] dietary restrictions.” If mere recklessness could result in criminal liability, a mother could conceivably be charged with a crime for such conduct if it resulted in premature birth and subsequent death of the child. The same conduct, however, would not be criminalized if the fetus died in utero. In essence, the majority was worried about creating a perverse incentive for a woman to refuse to deliver the baby if she feared criminal prosecution should the baby not survive after birth.
One judge dissented, saying, “I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person.” The dissenting judge conducted a statutory interpretation of his own, citing many of the same statutes, to reach an opposite conclusion. He reasoned that the “pertinent parts of the Penal Law speak to victims as they are, not as they were at the time the acts giving rise to the crime were committed. There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother’s baby postpartum.”
In its opinion, the majority directly appealed to the legislature to make its intent clear for such a situation as the facts presented here. (“The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts.”)
Time will tell if the state lawmakers respond.
 People v. Jorgensen, 2015 NY Slip Op 07699, (N.Y. Oct. 22, 2015),