Long Over Due Updates

Things are moving at a brisk pace, so i will dispense with the witty banter and get straight to the point.

1) us-courts.doc -  an exhaustive list of all the US states and where they stand on the issue of fetal rights. I’ve gone through the whole thing and added a summary on the front page (it is very rough, and in some cases a “maybe” would have been a little more appropriate as opposed to liable/not liable).  Still, a good reference point i think since it shows that the US, for all the liberties we might associate with it, seems reluctant, at very least, to be overly pro-fetus. Note too that the states for fetal rights cannot be clearly associated with either the red or blue political camps. In fact, New York and Illinois are Democrat states but both seem to hold moms liable. Also, it is note worthy that the majority of cases are all criminal, and that in many of them, the judgement swung on whether the court was willing to extend a certain statutue to cover fetuses.

2) The English Connection

Where basically it is supposed to be indicative of england willing to follow US courts on the matter of fetal rights. Although now having seen the distinctively more prop mother stance of the US, i’m not entirely sure what this is supposed to mean.

Finally a question for us to consider -

Is Wilkinson v. Downton restricted to intentional infliction of psychiatric harm?  Or can the rule be extended to physical harm?

I’m splitting hairs on this

Whatever was she going on about?

Hey guys, I’ve decided to post my material regarding US law on fetal drug exposure and whether an unborn child is a legal personality since I didn’t have it with me in class, which resulted in the confusing rambling earlier. Good for you if you tuned out early.

Cheers,

Sin Yan

P.S. Does anyone actually still get any sleep here?

US law

- In some states intrauterine fetal drug exposure is considered child neglect or abuse.

In re JEROME, DANITA and PRENTISS F. and GENESIS N., Minors, v. Cynthia N., Appeal from the Circuit Court of Cook County, Child Protection Division 1-99-2106 First Division, September 10, 2001

Illinois Juvenile Court Act of 1987

“(1) Those who are neglected include: (a) … or (c) any newborn infant whose blood, urine or meconium contains any amount of a controlled substance *** or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of such substances, the presence of which in the newborn infant is the result of medical treatment administered to the mother or the newborn infant[.]” 705 ILCS 405/2-3(1) (West 1998).

- Unborn Victims of Violence Act of 2004 (Public Law 108-212)

This law is codified in Text 18 Section 1841 of the United States Code (and also in Title 10, Chapter 22 of the Uniform Code of Military Justice, which includes some minor technicalities). Federal criminal law does not apply to crimes prosecuted by the individual states, but 34 states also recognise the foetus as a crime victim for homicide and feticide cases. It is interesting to note that this law actually makes our case stronger, because the actual text of the law in Text 18, Section 1841 of the United States Code states:

(c) Nothing in this section shall be construed to permit the prosecution (1)… or (3) of any woman with respect to her unborn child.

- Roe v. Wade and Doe v. Bolton –> Roe is a landmark decision about abortion that states that abortions are permissable for any reason a woman chooses, up until the point at which the foetus becomes ‘viable,’ that is, potentially able to live outside the mother’s uterus, albeit with artificial aid. Viability is usually placed at about 7 months (28 weeks) but may occur earlier, even at 24 weeks.” (In Singapore, abortion is illegal after 24 weeks unless it may harm the mother to continue carrying the child.) According to Roe, most laws against abortion in the United States violated a constitutional right to privacy under the Due Process Clause of the 14th Ammendment.

The Unborn Victims of Violence Act was greatly opposed by pro-choice orgnisations that claimed that it conflicted with Roe, which ruled that a foetus was not a “person” under the 14th Ammendment and thus did not have a constitutional right to life. Some prominent legal scholars have written that fetal homicide laws do not conflict with Roe, though.

- State law protecting the foetus from injury, whether in the form of legislation or case law (South Carolina and some other states)

- In re Baby X 293 N.W.2d 736 (Mich App. 1980) –> as mentioned by Leon’s group

- Wisconsin’s 1998 Fetal Protection Law aka the “cocaine mum law” –> an incarnation of the parens patriae jurisdiction specifically relating to cocaine-abusing pregnant women

Warning!

Quick note: Apparently there may be a stipulation that you can only photo copy cases from the actual journals, and NOT online ones. Not sure how far this is true, so you might want to hold off printing cases just yet.

The Lull Before Crazy Stuff

Okay guys, most of us feel like crap now. As Bingham (Joshua) points out, this week is like being crushed by successively larger and larger rocks. First it’s Contracts, then LAWR, then Torts, and finally on top of all that is crazy SLS where we have to listen to people talk about ducks, monkey and African Bushmen (seriously…). And right about now, we probably are all feeling like the condemned miss-fits that is going to be steamrolled by the almighty TG-19, as pictured below:

I should remind all of you though, that this is not the end! As in any B-grade flick about kung fu, useless sports teams and Rocky, it is always the middle of the movie where our heroes are suddenly haunted with self doubt, ex girlfriends, dubious sexuality and mother in laws. My friends, that’s where we are now – the rock bottom that is always in the middle of the movie. The good news is that the only way is up (unless we get the shovel). All we need now is for some cheesy old paternal figure to tell us to push on, cue the rocky training music and then go straight to the deans list.

So here it goes:

I know we all feel like crap. Yes, LAWR is onerous, and yes our client is an idiot for taking drugs. YES, BUT we’re in law school for a reason, and that’s because we’re all smart, intelligent and articulate people. Some of us even enjoy subjecting ourselves to such mental torture under the guise of “challenge”. So if we’re smart, intelligent and all that, why the heck are we moping about?!

See you on the dean’s list people!

p.s. I know i’m really pushing this joke, but Bingham approves of this blog.

Dobson – C’est tres utile!

Quick note here. Dobson is very useful since the judge explores the judicial approaches of not just Canada, but US and UK as well. It also articulates very well the policy reasons behind the judgment. Methinks that this case is easily essential reading for everyone, if just for a general picture of what the heck is going on.

It should be cautioned however that this deals with motor negligence, and not drugs, so the facts are not exactly the same.

Cases

I think it’s time to start forming a comprehensive case list so that we can all refer to it off-hand. First up here are the 3 main cases, as highlighted in the previous class:

Dobson v. Dobson Dobson

Winnepig child and family services (Northwest Area) v. G.(D.F) Winnepig

Lycnh v. Lynch Lynch

On top of this we have several US cases which may be of use (have yet to read them so reader beware)

Stillman v. Yongquist Stillman

Whitner v. State (A cocaine case with similar fact patterns)

Commonwealth v. Pellegrim (similar to Whitnet but different judgment)

Also, there is

Attorney General’s Ref (no. 3. of 1994) [1998] A.C. 245 (where it is suggested that UK may follow the US approach)

Note: This list will be updated regularly as time permits. If you guys have cases that you want to add, throw them into the comments box, or better yet get a wordpress account and i’d let you contribute directly.

Note: If you noitce, there is now a “case list so far” page on the right column. I’ll add cases in there once we can verify that they are useful.

YES, there’s a huge chunk below, BUT, there is never any harm with summaries.

Essentially the main points (as per Joshua B.) and issues are as follows:

1) Is the fetus a legal person?

2) Whether policy arguments put forth in other jurisdictions would be applicable in SG

3) Whether a mother owes a duty of care to an unborn child if it is Fair Just and Reasonable.

4) Can an objective std. of care of a pregnant woman be ascertained? If so, what is that standard

Notes from Bingham: research progess (May not be competible with some microsoft word formats)

Main Cases:

Dobson v. Dobsn dobson

Winnipeg child and family services (North West Area) v. DFG Winnepig

Lynich v. Lynich. lynch

Finally, here’s how to start posting here. First get a WordPress account, then contact me at either eil_atan@hotmail.com or 91518518 with your user name and i’ll add you. It’s zomg that simple! i think maybe a person from each group would be ideal, although more posters is always a good thing – methinks we can keep this blog a little lighter than class discusssion so that we can all not go insane from the stress.

(Thanks to Christine for the actual files)

Parents should stay away from mushrooms: Class on 22/10 Mon

Leon’s Group

Negligence 

Duty of Care: Is the foetus a legal person?

1) Born alive rule – upheld in UK, abandoned in US

2) Ability to sue 3rd party for negligence

Mckay v. Essex Health Authority

        Burke v. Islington Health Authorityhe

By logical extension, should be able to sue against mother as well.

3) Congenital Disabilities (Civil Liabilities) Act 1976 – Immunity to mothers in the UK

Is this applicable in Singapore?

Expection in motor negligence

Policy

1) Synthesizing Policies

If policy A applies in the UK, and if the reasoning behind it is applicable in SG, then it may be possible to extend to SG

2) Policy Issues in Singapore

Abortion legalized up to 24 weeks  – clearest example for a pro mother stance

Anti-Drug stance – harsh anti drug laws possible in favor of baby asserting it’s rights. However, the act being illegal and the rights of     the fetus should be seen as two different issues.

Standard of Care

Difficult to establish an objective standard of care

Stone & Dobison v. R.  (Challenges the objective standard with regards to the intellectually disabled)

Remoteness and Causation

Possible issues with the ‘but for’ test. Is the medical certainty?

Damages are vague according to fact pattern.

However there may be a need to accept the facts as we find them.

Defences

1) Limitation Act (N.A.)

2) 3rd party negligence

possible avenue for subsequent actions by fetus v. 3rd party.

Battery

NSW article : Child has to be legal entity first (For legal definitions of when life starts – Hutty v. R.)

1) Intent – Recklessness can the the place of intent

2) Physical contact – a given

Defences

Implied consent (unable to prove)

Floodgates (unlimited liability)

Aside:

Force Feeding: Guantanemo Bay case (battery from force feeding)

Sook Zhen’s Group

Negligence

1) Duty of Care (spandeck)

Proximity: Causal, Relational and Physical (all satisfied)

2) Policy

Justice argument

Parens Patriae – Court can intervene, usurp parental responsibility ( From Winnipeg Child and Family Services v. DFG. )

Fetus “right to healthy life”

In Mother’s Defense

Proximity: Casual (not the cause?)

Policy

1) Moral duty is not a legal duty

2) UK and Aus Halsbury’s : Foetus has no legal person

3) Flood gate argument, also: Discourages cocain mums from seeking treament

4) Slipperslope

5) Discrimination against pregnant women

6) Autonomy of preg. woman, right to self determination – R. v. Merto, caeserian (mum refused procedure, court cannot intervene)

7) Born alive rule cannot be extended in this case beyond 3rd partys to mom and child

Statutory Limitations

1) No objective standard of care for preganant women (potential variations in situation, finanacial differentiations)

2) Limitation Period – expired.

Mel. Wong’s Group

Specific jurisdictions (Canada, UK, Aus) and pre-natal negligence

Canada

1) Duty of Care: Can hol but should consider policy, cannot apply basic key elements

2) Policy: Strong reasons to negate duty (Dubson v Dubson )

Privacy and righst of woman

Difficulty to articulate std. or care (reasonable pregnant woman std.)

Issue: whether a mother was negligent in rot for damages to her child arising from an alleged prenatal negligent act which injured her fetus.

Canadian Constitution – Proect the liberty of the woman, Charter of rights and freedom.

Text: Maternal Tort Liability for pre natal Injuries.

UK Policy arguments

1) Increase stress on mum

2) Impractical

3) Insuraance

4) Detrimental to child

Aus

Basically cannot sue unless in motor negligence case. Fetus gains legal personality at birth

Precusor to Congenital disabilities (civil liabilities act) – Law comission report on injuries to unborn children.

Bingham J(oshua)

Legal personality of fetus in UK, US, Canada

Duty Breach Causation Remoteness

Policy to be main focus

Uk: B v. Islington Health Authority

Canada: Dobson v. Dobson

Aus: Lynch v. Lynch (Departs from Dobson)

Which would Singapore Focus on?

US KIV

Causation Argument

1) Material increase

2) Would it pass the ‘but for’ test?

3) strictly following the fact pattern?

Battery

3rd party possible, ref: Law Commission Reports

Can a mother commit battery on herself?

What is the real definition of battery 

Potential other parties

Suloon and the Doctor (materially increased the risk)

Joint tort feasors?

Seach Terms: Fetal, Unborn, Congenital, Narcotics, Drugs.

Weekend Hangovers (Jstor how to)

Okay the place has been quiet during the weekend for a reason: because most of us were sleeping. Anyways just a short how to on how to use Jstor in case you want to. Zi Xiang has already pointed out that the place has a huge tilt towards american cases, but given how impotent our UK overlords are in this area of the law, i think the perspective from hollywood might be useful.

Very simply, go to this link:

https://proxylogin.nus.edu.sg/libproxy1/public/login.asp?url=http://www.jstor.org

(no more painful browsing through the nus tab menus!)

CJ Koh was a sensative man

Okay fellow no lifers, some recommendations from my horrible crap ass day in the library.

1) Halsbury England may be of limited use, because it is missing several of the key words (or well at lease according to the other groups_

2) The Treasure Hunt gave me no treasure.

3) JSTOR on the other hand, is especially useful. NUS has a subscription to it, however the access might be limited to a couple of users, so don’t all of you try logging in at the same time. To Log in, access it as you would usually do most of the E resources. Through the main NUS site, and the the library etc.

4) THIS http://www.ucd.ie/philosophy/staff/casey/PregWomUnbrnChld.pdf is also very useful, and raises several cases you can take from the off set.

5) I think TG 19 people could try using this too. Just poke me to post.

O and finally, a word from our awesome tutor telling us NOT TO WORK TOO HARD.

Hi everyone,

For those of you not clear as to what you are supposed to do for your research class next week, please refer to the bottom of page 2 of your Research Class Instructions (which is unfortunately not marked).

ALL Teams are to ONLY research major secondary sources—textbooks, reference materials like Halsbury’s Laws (which give an overview) or digests (which may help identify cases). The teams should use these sources to identify (but not yet to read) leading primary sources—namely important cases (Singapore/English). 

**DO NOT RESEARCH OR READ CASES YET. That will come soon enough.