Is the ‘Born Alive’ Rule Outdated and Indefensible?

This article attempts to theorise legal personhood in a manner that will enable courts to express what it is about newborn infants that relevantly distinguishes them from foetuses for legal purposes. This is a difficult task if one focuses solely on the intrinsic properties of the foetus, as many philosophical and biological accounts of personhood tend to do. Further, it is a task complicated by the integration of medical technologies into the embodied experience of pregnancy and popular discourses about foetal personhood. I argue that a conception of personhood that pays due regard to the intrinsic and relational aspects of foetal being has greater potential both to explain the existing criminal law, and to guide future developments, than does a theory based solely on the intrinsic properties of the foetus. The theory developed here is consistent with retaining the ‘born alive’ rule. However, in the event that the courts decide to abandon the rule for the purposes of homicide, the theory also provides a basis for confining the recognition of foetal personality to the context of foeticide caused by third party assaults on pregnant women.