Thursday, April 09, 2015

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 pregnancyBecause 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.

9 comments:

Hashim said...

By this logic, if a woman honestly tries to kill herself by driving her car into oncoming traffic, and she somehow survives but kills one or more of the oncoming drivers/passengers, "the proper response is empathy" because "the very last thing we should do ... is to identify the harmful collateral effects of that suicide attempt ... and then seek to punish the person for those effects."

Perhaps, however, you'd moderate your empathy in my hypo by noting that the woman presumably could have found a way to kill herself without endangering innocent third parties. To which I'd respond that the same is true for a woman bearing a post-viability fetus.

t jones said...

This post demonstrates commendable empathy toward those who attempt suicide. Your approach to criminal law, however, raises some related questions. E.g.,
a) Are you suggesting that feticide should not be a crime which a pregnant woman can commit?
b) If you don't go that far, are you suggesting that the suicidal state of mind is a defense to a feticide charge (i.e., negates the intent to kill the fetus)?
c) If so, are you suggesting that desperation is/should be a defense to other crimes (e.g., the Les Miserables defense)?
If you answer yes to b or c, at which stage in the criminal process should the decision about culpability be made? By the police, the prosecutor or a jury?

Joseph Simmons said...

"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."

I don't think such a generalization is called for - though I agree with you that the prosecution in this instance was not called for and I am glad it was dropped. We find unfair prosecutions pursued under many kinds of otherwise meritorious laws.

In the case of Pruvi Patel, you identify an evidentiary issue. Was there such lacking evidence to justify overturning the verdict on appeal?

I do not believe the psychological and ethical concerns in play in Patel's case are very distinguishable from cases where women kill their newborns (which she possibly did). Even in the latter kind of case, some amount of empathy might be felt for a woman apparently so troubled.

(From Veridct)"[G]iven the enormous invasion of a woman’s bodily integrity that an unwanted pregnancy entails, she still should not be forced to remain pregnant, even when her fetus is sentient and viable."

This goes back to trying to separate the ethical concerns at play when women kill newborns. I do get the ethical 'hook' of killing while a fetus is dependent on the woman, but in either case I think the primary motivation is to end a life that will be inconvenient later.

I don't discount the difficult and varied ethical concerns at play at different points of pregnancy. I also continue to appreciate Prof. Colb's original and thoughtful posts on these matters.

An useful related article:

Diane S. Kaplan, Who Are the Mothers Who Need Safe Haven Laws? An Empirical Investigation of Mothers Who Kill, Abandon, or Safely Surrender Their Newborns, 29 Wis. J.L. Gender & Soc'y 213 (2014)

Joe said...

The sentence for Ms Patel (total forty years, but concurrent, so twenty) to me seems outrageous even if we grant guilt. Granting the worse, she is guilty of feticide and then the born alive child (a matter many think is open to at best reasonable doubt given questions of the scientific evidence provided) died. What this warrants if we grant criminal guilt is unclear but what was given would not be given for many serious clear-cut murders, even with aggravating circumstances.

The comments here in effect argue that suicide attempts warrant some sort of not guilty verdict. If so, okay, but I don't think prosecution is suggesting the woman is "a mere vessel." The woman in question was 33 weeks pregnant. She had a viable fetus. Abortion (except for limited purposes) can be banned at that point. The obligation this provides doesn't make the woman "merely" a vessel though.

Bei Bei Shuai, from what I can tell, had a good case for a not guilty verdict. She tried to kill herself. Suicide is no longer a criminal act. So, the prosecution had to rely on the obligation not to kill a viable fetus. But, this wasn't an abusive boyfriend or even a botched abortion attempt. It was the result of mental distress leading to self-harm.

[she said in her suicide note she was "taking this baby" but this doesn't erase her not acting in sound mind; yes, the same would apply if it was a newborn and she gassed herself with the baby]

http://www.theguardian.com/world/2012/may/30/indiana-prosecuting-chinese-woman-suicide-foetus

She did plea guilty of criminal recklessness in the death of her daughter, but was free per time served.

http://www.medicaldaily.com/bei-bei-shuai-freed-murder-charges-dropped-against-indiana-woman-who-ate-rat-poison-while-pregnant

The "empathy" warranted there might not be present in every case of feticide. For instance, a possible careless pregnant woman who took drugs late term & it killed the fetus. The cases we hear about, however, tend to be special cases. Again, even granting criminal punishment is warranted, twenty years or whatever seems outrageous.

Joe said...

ETA: The reference to "drugs" at the end of my comment isn't meant to apply to abortifacients. It references let's say a woman who used recreational drugs and recklessly in the process killed the viable fetus.

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