New York state’s highest court reversed a Long Island woman’s manslaughter conviction of her infant daughter, who died six days after childbirth, ruling that the child was not yet a “person” under the law at the time of the injury.
The child’s injury was sustained while she was still in her mother’s womb.
The mother, Jennifer Jorgensen, was in her third trimester and driving while under the influence of drugs and intoxicants in May of 2008 when her vehicle hit another driven by Robert and Mary Kelly, killing them both, according to the Albany Times Union.
After the head-on collision, Jorgensen’s daughter was delivered by Caesarean-section but died six days later from her injuries.
Speaking on behalf of the five-member majority of the Court of Appeals, Judge Eugene Pigott ruled that the determining issue was whether New York’s legislature intended “to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death?” he said.
“Under the current statutory scheme, the answer to this question is no,” the court ruled.
The Times Union reported:
The court said that Suffolk County prosecutors “concede that, had defendant not consented to the cesarean section with the result that the child be born alive, she would not have been prosecuted for manslaughter in the second degree.” Ruling against Jorgensen, then, “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.”
Judge Eugene Fahey, a recent Cuomo appointee, published a dissenting opinion.
“I cannot join in a result that analyzes our statutes to determine that a six-day-old child is not a person,” he said.
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