Page:Aka v. Jefferson Hospital Association, Inc.pdf/13

Rh   "create an inconsistency in the laws of this State by holding 'person' included viable fetus for the purpose of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate." Chatelain, 322 Ark. at 525, 910 S.W.2d at 219.

In response, the dissent criticized the majority for adopting a minority-jurisdiction rule that could lead to the illogical result of barring recovery for a stillborn child but not for one born alive. Id., 322 Ark. at 527, 910 S.W.2d at 220 (G, J., dissenting). The dissent maintained that Arkansas's wrongful-death statute must be construed liberally to accomplish its remedial objective and to be in accord with the Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973), which upheld a state's legitimate interest in protecting potential life at viability, the time when a fetus has the capability of meaningful life outside the womb. Id., 322 Ark. at 527–28, 910 S.W.2d at 220–21 (G, J., dissenting).

As appellant and the amicus briefs point out, Chatelain invited a legislative response. Id., 322 Ark. at 525, 910 S.W.2d at 219. More importantly, the legislature has responded. For example, during the trial of this matter, the legislature adopted Act 1273 of 1999, amending Ark. Code Ann. section 5-1-102, by adding the following definition to "person" in the context of criminal offenses:

(13)(B)(i)(a) For the purposes of §§ 5-10-101 – 5-10-105 ["Homicide"], "person" also includes an unborn child in utero at any stage of development;

(b) "Unborn child" means a living fetus of twelve (12) weeks or greater gestation.

(ii) E. Subdivision 13(b) does not apply to:

(a) Acts which cause the death of an unborn child in utero if those acts were committed during a legal abortion to which the woman consented;

(b) Acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment; and

(c) Acts which are committed in the course of medical research, experimental medicine, or acts deemed necessary to save the life or preserve the health of the mother.

Ark. Code Ann. § 5-1-102(13)(B)(i), (ii) (Supp. 1999).