Feticide and Suicide

by Sherry F. Colb

In my column for this week, I discuss the State of Indiana's conviction and sentencing of Purvi Patel to twenty years imprisonment for feticide and the neglect of a dependent, in connection with her having (according to the State) taken abortifacient drugs at 25 weeks gestation and then delivering a live fetus which she discarded in a dumpster.  In the column, I discuss the competing empathies that ought to have animated a case like this and the troubling nature of the decision to criminally prosecute Ms. Patel and ultimately sentence her to twenty years in prison.

In this post, I want to focus on a different Indiana prosecution for feticide, one that I mention only briefly in my column.  In this other case, in 2011, a woman named Bei Bei Shuai attempted suicide while she was pregnant.  She survived the suicide attempt, but the fetus did not, and she was subsequently prosecuted for feticide (though charges were eventually dropped).  Even more so than the prosecution of Ms. Patel (of which I am highly critical in my column), I find the prosecution of Ms. Shuai utterly outrageous, and I want to take this space to explain why.

To prosecute a pregnant woman who has attempted suicide for, essentially, murdering her fetus, is to treat the woman as a mere vessel or living incubator.  A woman--or a man, for that matter--who attempts suicide is typically in tremendous emotional agony, suffering from depression (as Ms. Shuai reportedly was) and feeling so much pain that she can imagine no way of soothing herself other than ending her own life, a prospect that most people, those who are not enduring excruciating and seemingly endless pain, would find terrifying and utterly undesirable.

Upon learning that someone has attempted suicide, the proper response is empathy and an effort to help the person understand that there are in fact options for her to feel relief from her suffering so that she does not have to end her life in order to feel comfortable, safe, and secure.  Suicide inevitably has effects on others in a person's life, because anyone who loves or cares about the person will necessarily wonder "what could I have done?" and feel a tremendous sense of confusion, loss, guilt, and probably anger as well.  "How could this person have done this and left me without her?"

Yet when we are lucky enough to have a person about whom we care fail at committing suicide, we are, I think, obligated to direct our energy to making clear to that person how much we care about  her, how much richer the world is for having her in it, and most importantly, that there is an end in sight to the suffering that may feel eternal to her, that there are treatments that work and that the feeling of despair that motivated the act of suicide will not just continue unabated for the rest of her life.

It seems to me that the very last thing we should do when we learn that someone has just attempted suicide is to identify the harmful collateral effects of that suicide attempt (such as the termination of a pregnancy the continuation of which was incidentally disrupted by the attempt) and then seek to punish the person for those effects.  I say "collateral" because Bei Bei Shuai was not trying to kill herself as a means of terminating her pregnancy.  Because of the unique way in which a woman is physically occupied by the embryo or fetus in her body, however, anything she does to herself necessarily has the potential to affect the embryo or fetus as well, including getting radiation treatment for cancer or taking medication for an illness from which she suffers.  The same is true for trying to kill herself.  Unlike a suicide bomber, there is no reason to think Ms. Shuai was trying to hurt someone other than herself.

To react to Ms. Shuai's suicide attempt, as the State of Indiana reacted, by seeking to prosecute her and punish her for feticide is to confirm the worst fears of a person suffering from a suicidal depression: there is no relief forthcoming, and things can only get worse.  I am glad that Indiana ultimately dropped the charges against Bei Bei Shuai (though reportedly not before she spent many months in pre-trial detention), but the State's treatment of this vulnerable, suffering woman, and its failure to understand the difference between deliberately killing someone else, on the one hand, and seeking a way out of crushing pain and depression for oneself, on the other, is something I find both alarming and heartless.  I hope that despite the large number of states that have feticide laws, Indiana remains an outlier in using these laws in the cruel manner that it has chosen.