Reckless Injury to Fetus Isn't Manslaughter

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By Lance J. Rogers

Oct. 23 — A pregnant woman whose reckless driving injured her unborn child and resulted in its death following an emergency cesarean section was wrongfully convicted of manslaughter, a divided New York Court of Appeals ruled Oct. 22.

In an opinion by Judge Eugene F. Pigott Jr., the state's highest court refused to stretch the manslaughter laws to cover this situation, saying the decision to make a pregnant woman criminally liable for reckless conduct that causes the child to die after it is born belongs to state lawmakers, not judges.

“It should also not be left to the whim of the prosecutor,” the court said.

Emergency C-Section

According to prosecutors, Jennifer Jorgensen was driving faster than 50 miles per hour in a 30 mph zone while under the influence of prescription drugs and/or alcohol when she crossed the dividing lane and hit another vehicle head-on. The occupants of the other vehicle died, and Jorgensen's unborn fetus was seriously injured when Jorgensen—who was not wearing a seatbelt—slammed into the steering wheel.

The child died six days after surgeons performed an emergency C-section. Prosecutors charged Jorgensen with three counts of manslaughter in the second degree, one count of aggravated vehicular homicide and one count of operating a motor vehicle while under the combined influence of alcohol or drugs.

She was found not guilty on all counts except manslaughter in the second degree for the death of her child.

New York's high court reversed the conviction, ruling that it was clear from the statutory scheme that the legislature didn't intend to hold pregnant women criminally responsible for injuring their unborn fetuses unless those injuries were inflicted intentionally.

Definition of ‘Person.'

When the legislature has intended to criminalize a pregnant woman's conduct toward her unborn fetus, it has clearly outlined those statutory prohibitions, the court said.

For example, lawmakers made it a class B misdemeanor for a pregnant woman to engage in “self-abortion,” under N.Y. Pen. Law § 125.50.

“Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so,” the court said.

A person is guilty of second-degree manslaughter, N.Y. Pen. Law § 125.15, when he or she “recklessly” causes the death of another “person.” Section 125.05(1) defines person as “a human being who has been born and is alive.”

The court noted that if the fetus had died in utero, Jorgensen couldn't have been prosecuted under the manslaughter statute because the fetus would not have fallen under the statutory definition of a “person.”

Reckless Conduct

Adopting the prosecution theory would stretch the criminal reach of the manslaughter statute well beyond what the legislature intended, the court said.

“Conceivably, one could find it ‘reckless' for a pregnant woman to disregard her obstetrician's specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions,” it observed.

As it now stands, these activities wouldn't trigger criminal prosecution if they resulted in a stillbirth, the court said.

The court also suggested that embracing the prosecution stance “would create a perverse incentive for a pregnant woman to refuse a cesarean section out of fear that if her baby is born alive she would face criminal charges for her alleged reckless conduct, jeopardizing the health of the woman and the unborn fetus.”

‘Pregnant Mother Exception.'

In dissent, Judge Eugene M. Fahey said he couldn't join in a ruling that a 6-day-old child was not a person just because she wasn't yet born when her mother crashed.

“There is no pregnant mother exception from criminal liability for reckless acts that result in the death of a mother's baby postpartum,” Fahey wrote.

Richard E. Mischel, of Mischel & Horn P.C., New York, argued for Jorgensen. Karla Lato, of the Suffolk County District Attorney's Office, Riverhead, N.Y., argued for the state.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at