LIVE BIRTH IN ITS MEDICO-LEGAL RELATIONS ANNUAL ADDRESS DELIVERED BEEORE THE MEDICAL JURISPRUDENCE SOCIETY OF PHILADELPHIA JANUARY 1887 By JOHN J REESE MD PROFESSOR OF MEDICAL JURISPRUDENCE AND TOXICOLOGY AT THE UNIVERSITY OF PENNSYL- VANIA PRESIDENT OF THE MEDICAL JURISPRUDENCE SOCIETY OF PHILADELPHIA PRINTED BY THE SOCIETY 1887 LIVE BIRTH IN ITS MEDICO-LEGAL RELATIONS JOHN J REESE M D The subject of Live Birth is one of consider- able interest and importance to the physician ; its medico-legal bearings invest it with no less interest to the practitioner of the law. My ob- ject, in this paper, is to present some of the practical aspects of the subject, and such as may elicit a profitable discussion. First, what is the medico-legal meaning of the term live birth ? In ordinary phraseology this term signifies the mere fact of an infant’s being born into the world in a state or condition of life, as opposed to a state of death. It is said that the child is born alive, or dead, without any reference to the attending circumstances. Not such, however, is the legal definition of live birth. The latter takes especial cognizance of these attending circumstances, narrowing down the definition to a very fine point. To constitute a live birth legally, the living child mu§t have been completely extruded from the mother, every portion of the living infant must be born into the world, and separated from the maternal parts; although the umbilical cord need not to be severed. So that, if in the act of parturition (which perchance from some cause may be protracted), the child’s head and shoul- ders, and even a part of the body, are born, if the remainder of the body should be retained within the maternal parts,—nay, if even a sin- gle limb is so retained,—even though the child should give unmistakable evidence of life by breathing, or by crying out,—still, if from some cause it were to die in the interval before the expulsion of the retained portion of the body, this would not constitute a live birth ; that child would not, legally, have been “born alive,” so exact and rigid is the dictum of the law. Under- standing the legal, restricted sense of the term, we are prepared to apply the principle to certain cases, both of a civil and criminal character, such as frequently demand medico-legal inter- ference. First, in civil cases, in reference to the laws of inheritance, or heirship of property, and the presumption of survivorship. This is an inter- esting topic, and, at times, most difficult to ad- just. It is well understood in law, that a child at birth may transmit an inheritance from its mother to another heir, provided it be “born alive” in the true legal sense. What, then, constitutes the proof of a live birth ? I reply, anything that will show that the child was living at the time of its birth. You will ob- serve that the question here does not regard the uterine age of the child; it may have reached the full, normal, uterine period of nine months, or it may have been prematurely born ; that makes no difference in the eye of the law, pro- vided only it was born living. Observe, again, that the question of the viability of the child, or its capacity to continue its living after its birth, does not at all enter into the account. It may be an immature foetus, lacking many months of its full development in the maternal womb, yet if it be “born alive,” and continues its exist- ence but for a few moments, it possesses its legal rights and qualifications, just as truly as if it had been born at the full term, and in the complete endowment of strength and vigor. Of course, breathing and crying, together with vigorous movements of the limbs, are to be regarded as the most satisfactory and con- clusive evidences of a living birth. But the laws of different countries singularly vary in their requirements of the proofs of a live birth. Thus, in France, respiration is regarded as essential proof; in Scotland, crying is so considered ; in Germany, crying, “ attested by unimpeachable witnesses.” In the United States and in Eng- land, the law is far less restricted on this point. In neither of these last-named countries is breathing or crying regarded as essential to establish a “ live birth.” And in this they are certainly in the right, judged by fair, physio- logical tests, since it is well understood that many children come into the world in what is techni- cally termed a still-born condition, or a state of apparent death—neither breathing nor cry- ing ; but from which condition they are subse- quently recovered by appropriate treatment, and continue afterward to live. Hence, I think, we must deem the laws of our own country and of England, on this topic, to be both wise and discriminating. These laws admit as good and sufficient proofs of a live birth, the pulsation of the child’s heart, or of one of its arteries, or the spontaneous movement of one of its limbs, or of its lips, or tongue ; and this evidence would 2 be strengthened by the pulsation of the um- bilical cord, after the expulsion of the child. According to Blackstone, “ crying, indeed, is the strongest evidence, but it is not the only evidence.” And Coke remarks: “ If it be born alive it is sufficient, though it be not heard to cry, for, peradventure, it may be born dumb.” The same legal authority describes “ motion, stirring, and the like,” as proofs of live birth. With this clear and definite understanding of what is legally regarded in this country, and in England, as proofs of a live birth, we must admit that foetuses have been born alive as early as four months of utero-gestation, and, of course, at all periods of a later date. Such a case is reported by Dr. Erbkam, of Berlin, where the foetus was only six inches long and weighed but eight ounces. It survived half an hour ; it moved its legs and arms, and turned its head from side to side ; it opened its mouth. The distinguished physiologist Muller pro- nounced this foetus to be not over four months old. Dr. Barrows, of Hartford, reports another case, especially interesting from the fact that the exact period of conception could be fixed. Miscarriage took place in 144 days, or less than five calendar months. The ovum was expelled entire. Before rupture of the membranes, the movements of the child were vigorous. After the rupture, it cried out very distinctly; it after- ward breathed with a gasp for 40 minutes. It repeatedly opened its mouth, and thrust out its tongue. It measured 10 inches long, and weighed 14 ounces. This phase of the subject is, perhaps, pre- sented in a still more striking aspect in the con- sideration of that form of the law of inheritance denominated “ tenancy by courtesy." This phrase signifies, according to Blackstone, “ a tenant by the courts of England,” and is applied to the case where the husband of a woman who dies possessed of landed property not otherwise devised, acquires a life-interest in said property, provided a living child was born of the marriage during the wife’s life. “ In this Case ” (in the old law language), “ he shall, on the death of his wife, hold the lands for his wife, as tenant by the courtesy of England.” If there should be no issue born alive, the estate would revert to the woman’s heirs-at-law. This old English law is still in force and opera- tion in some of the States of this country ; and cases not infrequently arise, both here and in England, where the whole question of the life- interest in a large estate by the surviving hus- band may turn upon the very nice and delicate point whether the infant, through whom alone he could inherit, was, or was not, born alive. As an illustration, I will briefly cite a case in which I was personally concerned as a witness, which was tried in the State of Delaware some years ago, where this old English law of “ ten- ancy by courtesy ” is still in force : A gentle- man of New Jersey had married a lady who possessed landed property in the State of Dela- ware. They afterward removed to New Jersey, where the wife died some years subsequently in giving birth to their only child; which also per- ished immediately after its birth. Two highly respected medical practitioners assisted at the lady’s accouchement, which was a difficult and protracted one, and in which she died in con- vulsions. Both these gentlemen concurred in the opinion that the infant (which was at full term, and properly developed) was living at the time of its birth, although it neither cried nor visibly breathed. In accordance with this de- cision of the physicians (which I believe was not disputed at the time), the husband very naturally deemed himself entitled, under the laws of Delaware, to a life-interest in his de- ceased wife’s property ; and he so continued in possession for a number of years, at the expi- ration of which time, the wife’s heirs-at-law sued' out a writ of ejectment to dispossess him of the property, on the ground that his child had not really been born alive. The husband, accord- ingly, was put upon his defense; and I, among others, was called as a medico-legal expert wit- ness for the defense. Here the whole question, as you observe, turned upon the proofs of a live birth. The case was tried at Dover, before a court and counsel composed of the most dis- tinguished members of the Delaware bar. For- tunately, both of the physicians who assisted at the infant’s birth, were present at the trial; they testified that the labor was protracted and diffi- cult; that the woman had puerperal convul- sions which caused her death; that the infant was at full term, and properly developed ; that it was delivered by instruments ; that it did not cry nor visibly breathe; but that it was not livid in the face; that its lips were of a rosy color; that its heart and temporal artery beat for some minutes after separation from the 3 mother; and, further, that the umbilical cord pul- sated at the time of the expulsion of the child. Now, under such circumstances, I could not hesitate in my belief that a new-born child, in whom the heart and one or more of the arte- ries pulsated for some minutes after delivery, could not be regarded as dead, and, conse- quently, must be considered as living. More- over, the fact of the pulsation of the umbilical cord at the time of birth was a strong pre- sumptive proof of life in the child, since this pulsation invariably ceases if the cord is at- tached to a dead child. I therefore gave my opinion, as an expert, and in accordance with numerous cases that had been decided both in this country and in England, that this child was born alive. I was rigidly cross-examined by the prose- cution, their main effort being to make it ap- pear to the court and jury that the proofs of live birth alleged by the defense were not suf- ficient to establish it. They could not deny the sworn testimony of the medical witnesses as to the beating of the child’s heart and artery, and the pulsation of the umbilical cord, but they attempted most ingeniously to get me to say that these movements were not necessarily evi- dences that the child was really alive at the time, but that they were nothing more than the mere result or remnant of its pre-existing uterine life, being much of the same nature as the spent or inertia-motion of some machine, or mechanical toy, after the stoppage of the steam engine, or other propelling force. I could not but smile at this adroit but specious reasoning of the distinguished counsel, but felt con- strained to reply, that most undoubtedly these movements of the child’s heart and arteries were, in a certain sense, the result or remnant of its pre-existing uterine life ; not, however, through the force of inertia, but precisely in the same manner in which both his own and my own vital movements—such as the pulsa- tion of our hearts and arteries—were " the result and remnant ” of our respective pre-natal ex- istence, or of the vitality derived from our mothers,—the only difference being that in the case of the infant these "remnants ” of vitality did not continue to live, but nevertheless lasted sufficiently long to demonstrate their actual ex- istence. I may add, in passing, that the writ of ejectment was not sustained, but that a subse- quent settlement was agreed upon. In order to sustain my position on this ques- tion, allow me briefly to cite a few well-known cases in English and American jurisprudence. The first is the oft-quoted case of Fish v. Pal- mer, which was tried in the Court of Exchequer in 1806. The wife of the plaintiff, Fish, was possessed of landed property. She died after giving birth to a child which, at the time, was supposed to have been born dead. In conse- quence of this assumed dead birth, the estate of the wife was claimed, and taken by the defendant, Palmer, her heir-at-law. Several years after, the husband was led to believe, from information derived from some women who were present at the delivery, that the child had not been born dead, and an action was accordingly brought by him to recover the estate; and it lay with the plaintiff to prove the allegation that his child had been born alive. The ac- coucheur who had attended the birth had died in the interim; but it was proved that he had declared the child to have been living an hour before it was born ; that he had directed a warm bath to be prepared; and when the child was born, that he gave it to the nurse to place in the bath. The child neither cried, nor moaned, nor manifested any sign of active existence; but the two women who placed it in the bath swore that when it was immersed there appeared twice a twitching or tremulous motion of the lips. No further signs of life were manifested, even by blowing into its throat. The main question in the trial was, whether the tremulous motion of the lips was a sufficient proof of the child having been born alive. The medical experts differed in their opinions upon this question: those for the plaintiff as- serting that had the child been born dead, there could have been no muscular movement in any part of its body ; but Dr. Denman, an eminent obstetrical authority, who was called for the de- fense, undertook to make a distinction between uterine and extra-uterine life, averring that the child (though he would not say it was absolutely dead) had not been born truly alive; and that the tremulous motion of the lips was due to the "remains” of uterine life,—very much the same idea as was broached by counsel in my own case in Delaware, just detailed. The jury, however, under the direction of the court, did not adopt Dr. Denman’s view of the case, but pronounced that the child had been born living; and the plaintiff then recovered an estate, of 4 which he had for ten years been deprived. “We thus see,” to quote the language of Prof. Taylor, “that the English law does not recog- nize any distinction between uterine and extra- uterine life. The question is simply life or death —living or dying.” In the case of Brock v. Kelly, which came before the Vice-Chancellor’s Court in 1861, the decision rendered confirmed the above view, although based upon a somewhat different kind of evidence, namely, the pulsation of the um- bilical cord. Dr. Freeman, the attending phy- sician in this case, had noticed at the time of the child’s birth, and after separation from the mother, that there was a slight pulsation in the cord, showing a feeble but independent circu- lation. He had expressed the opinion that the child was living, and had directed it to be put into warm water to sustain its vitality. This was further confirmed by the nurse, who had been heard to say that the child was born alive, but had died the same day. Dr. Tyler Smith, an eminent authority, supported the opinion of Dr. Freeman, considering that the pulsation of the umbilical cord—after delivery—was a physiological proof that the child in question was not born dead. The Vice-Chancellor de- cided that the proof of breathing was not nec- essary, but that there was sufficient legal evi- dence of life after birth in the pulsation of the cord observed by the accoucheur. As Dr. Tay- lor remarks of this case : “ This decision is in accordance with law and common sense. Pul- sations (in the cord) indicate an action of the infant’s heart, as much as motion of the chest indicates an action of the intercostal muscles.” The third case that I shall mention belongs to this country. It is detailed in the July num- ber of the Am. foum. Med. Sci., 1870. Dr. Seals had induced labor in a woman, by ergot, at about the seventh month of gestation. A large child was born after some difficulty, but it did not make the slightest effort to breathe. There was distinct pulsation of the umbilical cord. Now, was this child living or dead ? As it had not breathed nor moved, according to some authorities it would be regarded as dead. The pulsations of the cord would have no sig- nificance with them. But that this child was really born living was proved by what followed. Flagellation, and alternate sprinkling of hot and cold water produced a violent spasmodic contraction of the diaphragm. This condition continued for five minutes after the birth of the child. The cord was now severed, and about half an ounce of blood was allowed to flow from the foetal end. The tongue, which had fallen back, was drawn forward, when the child began to breathe very feebly, and so con- tinued to breathe at intervals. The heart beat very feebly. The pupils were dilated and did not respond to a bright light. The child was, in fact, suffering from compression of the brain. This condition lasted for one hour, when it ceased to breathe. The above cases, I think, sufficiently attest the wisdom and justice of the American and English laws in relation to the legal proofs of live birth—at least, in cases of a civil nature. There are, however, certain conditions con- nected with this law of inheritance by “ tenancy by courtesy ” which demand a passing notice. i. There must be satisfactory proofs of a live birth. These we have just discussed. 2. The child must be born while the mother is living ; this was the old maxim of Lord Coke, 300 years ago. Hence, if a living child were extracted, by the Caesarean section, from a dead mother, according to the strict interpretation of the law it could not transmit an inheritance; because as death dissolves the marriage contract, the subsequent birth of a child would not be in wedlock. But I very much doubt, if such an exceptional case should arise, whether the courts would not set aside the technical objection. 3. The child must be born capable of inherit- ing'. Therefore a “monster” cannot inherit nor transmit property. But it is extremely diffi- cult to give a legal definition of a monster. Lord Coke’s definition is “ a being that hath not the shape of mankind.” Clearly, however, no mere external deformity or internal malfor- mation should constitute such a disability. But I cannot, at present, enter upon the discussion of this very complex subject, though it is one of great interest; I would simply remark that it would be extremely difficult to apply this restric- tion to such abnormal cases as the Siamese Twins, or Crissie and Millie, and others of a similar nature, where two distinct beings are connected together by a congenital bond of union. Let us now briefly consider the application of the principle to criminal cases, of which I design to notice only one, namely—Infanticide. The crime of infanticide, or child-murder, in modern times, and among so-called civilized peoples, is confined almost exclusively to the destruction of illegitimate children. Although not regarded by the law as a specific crime, but is tried by the usual laws of evidence in cases of murder, there is yet this important difference j in the nature of the medical evidence required, namely, that it must prove satisfactorily that the child was legally born alive. In other words, the burden of proof that a living child was de- stroyed is thrown upon the prosecution. And this is only right, and in accordance with strict justice. The law here humanely assumes that every child born into the world is dead, until the contrary is shown, because so many infants do thus actually come into the world, and many others die very soon after, from various causes, and in the latter, the signs of their having lived are often indistinct. Now, as a charge of infanticide can never be sustained unless there is a distinct proof that the child was legally alive at its birth, great difficulty is j usually experienced in obtaining sufficient evi- dence to convict a woman accused of this crime. As a general rule, she has been deliv- ered in secret, with no witnesses of its birth to testify to its having been alive or dead ; and, moreover, the body of the child is frequently j concealed, or destroyed. You perceive at once the important difference between the nature of the proofs of a live birth obtainable in this case, and of that which we have been considering in civil cases. In the latter, as we have seen, the testimony of wit- nesses present at the birth is all-important; | whereas in a case of infanticide, we have no witnesses who were present, but we are obliged to depend, in most instances, exclusively upon the evidence derived from the post-mortem ex- ' amination of the body of the child. And just here we are confronted with a curious and knotty position. As we have seen, a live birth legally implies the extrusion of the entire body of the child into the world ; and, as infanticide implies the destruction of a child legally born alive, it follows, through a figment of the laws, that the destruction of an infant only partially born, even although positively living, cannot be regarded as child-murder. An eminent English authority, alluding to this fact, remarks that “ the law which requires that a child should be entirely separate from the mother before being considered born, is a di- rect encouragement to child-murder ; and he cites the case of Rex v. Poulton (Chitty, Med. Jurisprudence), where the medical evidence showed that the child had breathed ; but, as the medical witnesses, very properly, would not swear that it was wholly born alive, the judge held their evidence to be insufficient to convict the prisoner. And in the case of Rex v. Simp- son, tried at Winchester in 1835, Baron Gurney stopped the case as soon as the medical witness stated that the lungs might have been inflated during the progress of the birth. I have stated that in judicial cases of infanti- cide, the proofs of a live birth are derived, al- most exclusively, from a post-mortem examin- ation of the child’s body. If this is made within a day or two after delivery, and while the body is fresh, there are certain characteristic appear- ances about the head and face—such as the condition of the eyes and ears, the hair, etc., which, to the medical expert, would be very sug- I gestive, but which need not be dwelt upon here. But, as a general rule, and practically, this ex- amination is limited to the discovery of evi- dences of respiration. For, it is assumed that if it can be shown that the child had breathed, it must have been alive at the time of its birth, i Whilst, therefore, respiration is not the only proof of life in a new-born child, and, as we j have seen, is not required in civil cases, it is the only available proof in the case before us, but, nevertheless, with the proviso before mentioned. Let us consider how the proofs of respiration j are determined: first, by proper inspection of the chest and lungs. The chest of a child that has breathed is arched, and not flat, as in one | born dead. The diaphragm, after respiration, is depressed to between the 6th and 7th ribs. Before respiration it rises to between the 4th and 5th ribs. The larynx, after respiration, is wider, and is not closed by the epiglottis. The lungs, before breathing, are placed far back in the thorax, so as almost to escape notice ; after breathing, they completely fill the chest, and almost cover and conceal the heart and pericardium. Before respiration, they have a firm, compact feel, and are of a bluish-red color, resembling the solid spleen or liver in appearance. After full breathing, they are spongy and crepitant to the feel, and exhibit a peculiar marbled, bluish-pink appearance. 1 But it is especially the change in their specific 6 gravity that is the most marked feature in these organs, and the one most relied on for diag- nostic value. Before respiration, the density of the lungs is such as to cause them imme- diately to sink when placed in water ; but after they are filled with air by the process of breath- ing, or otherwise, they become lighter and buoyant, and float upon the surface of water. This latter test, which is technically denomi- nated the “ hydrostatic test," is the one gener- ally relied on in order to prove a live birth in a case of infanticide- But, although a valuable test, it is not an absolutely certain test; and the medico-legal expert should understand its pre- cise value, and know exactly what sort of evi- dence it affords in this regard. Strictly speak- ing, the floating of the lungs in water only in- dicates that they are filled, more or less, with : air. Now, this air may have been introduced | into the lungs in three different ways: (i) by natural respiration ; (2) by artificial respiration, as by blowing into them through a tube; and (3) by the gases of decomposition. But, in a judicial case of infanticide, the idea of artificial respiration may be excluded, because this latter operation is only resorted to for the purpose of restoring an apparently dead-born child ; whilst it would be the object of the perpetrator of the crime to make it appear that the child was born dead, and of course, therefore, would not resort to a measure that might indicate the contrary. As to the levity of the lungs caused by the gases of putrefaction, I would simply remark that this objection can only arise where the body of the infant shows unmistakable evi- j dences of decomposition ; and then there is no practical difficulty in ascertaining the true state of the case. Granting, then, that the floating of the lungs j on water may be accepted as good proof that the child had really breathed, and was conse- i quently alive at the time of its birth, it does not, as you will observe, necessarily prove that it was legally “ born alive,” inasmuch as it might possibly have perished, either accidentally or by design, before the birth was entirely com- pleted. So that all that we can really affirm upon the subject is, that while the hydrostatic test does not absolutely prove a live birth, in a case of infanticide it affords a very strong pre- sumptive evidence of it. Secondly, there are some other evidences of live birth derived from the organs of circula- tion, such as the closure of the foramen ovale in the heart, and of the ductus arteriosus and the ductus venosus, and also of the vessels of the cord. But as these changes are uncertain as regards their periods, and, therefore, un- reliable, I will not speak any further about them. Thirdly, the organs of digestion of the child sometimes furnish unequivocal proofs of its live birth, provided it has survived sufficiently long to take any food, such as milk, or sugar, or arrow root, etc. The discovery of any of these in the stomach or intestines would be positive evidence that it had not only been born alive, but that it had survived its birth for some little time. Of course, in such a case, the lungs would also afford incontestable proof of the life. As regards the discovery of blood or meconium in the stomach of the infant,—while this might indicate that the child might have been living during the progress of the birth, so as to have taken in these substances during the act of inspiration, it would not prove that it had actually been “born alive” in the legal sense. This subject of the medico-legal relations of Live Birth might easily be extended further; but I think I have said enough to show that it possesses a real practical interest for the medico-legal student.