Mass. high court: Women can give birth unassisted without facing criminal liability if baby dies

By John R. Ellement, Globe Staff

The Supreme Judical Court today threw out the involuntary manslaughter conviction of a Milford woman whose child died during the birth that she undertook without medical assistance.

In a unanimous ruling, the SJC said it was not going to criminalize childbirths that take place when the mother chooses to forgo medical help.

“Existing criminal laws proscribing murder, most late-term abortions, and the neglect and abuse of children appropriately protect the State’s interests in safeguarding viable fetuses and living children without the need to subject all women undergoing unassisted childbirth to possible criminal liability,’’ Justice Barbara Lenk wrote for the court.

“Imposing a broad and ill-defined duty on all women to summon medical intervention during childbirth would trench on their ‘protected liberty interest in refusing unwanted medical treatment,’” Lenk wrote.

She added, “Moreover, such a duty is inchoate and would be highly susceptible to selective enforcement”

The case stems from a decision by Alissa Pugh to handle the birth of a child she delivered while on the toilet of her Milford home on Jan. 2, 2007. According to the SJC, Pugh knew she was pregnant, but did not disclose it to anyone in her family.

On that date, Pugh thought she suffered a miscarraige, but instead her water broke, the SJC said. While on the toilet, Pugh realized that the fetus was in a breech position and “pushed approximately ten times and pulled on the baby’s feet, legs, and body to hasten the delivery.’’

Five minutes later, the baby was delivered, but was blue and unresponsive. She disposed of the remains in the trash, which were later discovered, triggering a criminal investigation.

In the ruling, Lenk wrote that Worcester County District Attorney Joseph Early Jr.’s office failed to prove that the child was alive at birth and failed to show that Pugh’s decision not to seek medical help was the reason for the child’s death.

“This is not a case of intentional homicide,’’ Lenk wrote. “Where there is evidence that a pregnant woman acts with the requisite malice in killing a viable fetus during childbirth, she may be charged under existing criminal laws that punish intentional behavior.’

“Here, however, the defendant was charged with the unintentional death of her viable fetus. The evidence does not support her conviction of involuntary manslaughter, predicated in part on an ill-defined duty raising grave constitutional concerns.’’