The following, by AlisonM, is cross-posted from The Hand Mirror
There’s a case before the courts in Wellington that has more than enough heartache to go around: A collision between two vehicles in Newtown last June. Injuries on both sides. A much-wanted pregnancy lost. A grieving couple. Then, a husband charged with careless driving causing death. As I said, more then enough heartache to go around. For what sets this case apart – and is at the heart of some intense local and overseas media interest – is that the death was of the couple’s 31-week fetus.
According to a police Summary of Facts, this is what happened: Last June 24th, Bililinge Gebretsadik was driving through Newtown with his pregnant wife, Seble Cherie, in the passenger seat, when his car, a Nissan Tiida, collided with a Mitsubishi Challenger four-wheel drive, (for those who know the city, this took place at that awful intersection of John Street, Adelaide Road and Riddiford Street).
The police allege the collision happened because Gebretsadik failed to stop at a red light, something Gebretsadik is challenging. According to the police, an 80-year-old passenger of the Mitsubishi was injured, suffering whiplash, high blood pressure and “general all over body soreness as a result of the collision”. Meanwhile, in the Nissan, both front air bags deployed. Seble Cherie fractured her left ring finger and “sustained bruising across her abdomen with pain and tenderness to this area”.
Seble Cherie was taken to Wellington hospital where the vital signs of the fetus were monitored. After some deterioration, and within 4 hours of accident, an emergency caesarean section was performed, the baby was resuscitated and taken to the neonatal unit, but it was ascertained to have no brain function. Within three hours of the birth, the baby died. As a result, Bililinge Gebretsadik was charged with three counts of careless driving under the Land Transport Act, including one of careless driving causing death. The maximum penalty for the latter is 3 months imprisonment, a $4,500 fine and disqualification from driving for 6 months. The maximum penalty is below the bar for a jury trial; Gebretsadik has pleaded not guilty on all three charges.
Besides the personal tragedy suffered by those involved, this case also raises important questions about personhood under the law, with its attendant implications for reproductive rights. Gebretsadik’s lawyer, John Miller, says he thinks one of the reasons the police are pursuing the case (against the wishes of Seble Cherie, more on that below) is that it’s seen as a test for defining what it means to be a “person” under the Land Transport Act.
“There’s no definition of a person in the transport act, so that’s where this issue will focus on. What does it mean by a person,” he said in an interview in January. Along the way, however, Miller says, the police also must prove that Gebretsadik was careless and, if so, that it was the collision that caused the death of the fetus. His complaint with the police over the “causing death” charge is what he sees as their lack of compassion.
“When I learned it was his own child, and it was a much sought after baby, you just felt very sad,” Miller said. “The implications for him, if he gets a conviction, careless driving causing death, he’s going to lose his license for 6 months and then he’s also going to lose his job because he’s a taxi driver, so the impact on the family is huge. Apart from the grieving process they’re going through.”
Nicola Peart, a law professor at Otago University who wrote the chapter on the status of the fetus in the specialist text Medical Law in New Zealand said the first question was whether the child was born alive. Under the so-called “born alive” rule, a fetus is not legally a person until it is born alive. (This was challenged in the seven-year Right to Life v Abortion Supervisory Committee case, but the challenge failed.)
“If the child was alive when it was born, no matter how briefly, then the child was a person and that issue falls away,” Peart said. If it was not, “then the question is whether the ‘person’ for purposes of the Transport Act should include an unborn child, i.e. one that was not born alive. If that meaning is accepted that would expand personhood which poses serious questions for pregnant women.” She continued: “It would mean that a pregnant woman who caused an accident which resulted in the death of the unborn baby could also be prosecuted under the Transport Act. There would be no logical basis upon which you could distinguish between the mother and anyone else causing the accident.”
The next question, Peart said, is what other forms of conduct those who are pregnant might be liable for. “It would seriously interfere with pregnant women’s rights,” she said. (I’ve written a separate article on the increased surveillance and, in some cases, criminalisation of pregnancy in New Zealand over at Werewolf.)
In her chapter, “The Legal Status of Life Before Birth,” Peart discusses a 1997 case well known in Canada, Dobson v Dobson, in which a court ruled that a child, after it was born alive, was able to sue his mother for prenatal injuries he sustained “as a result of her alleged negligence in causing a motor vehicle accident”. In the end, Canada’s Supreme Court disagreed. In doing so, it said this: “In contrast to the third-party defendant a pregnant woman’s every waking and sleeping moment, in essence, her entire existence, is connected to the fetus she may potentially harm. If a mother were to be held liable for prenatal negligence, this could render the most mundane decision taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts.”
Indeed, one might imagine a case similar to the Wellington one in which, say, the pregnant passenger wasn’t wearing a seatbelt. Might that person then be culpable for any prenatal injury? As Peart wrote in Medical Law, decisions like the one made by Canada’s Supreme Court, show those jurisdictions “recognise that imposing coercive orders on pregnant women is fraught with difficulties”. She continues: “Not only is it hard to draw a clear line between acceptable and unacceptable behaviour, it could also destroy the trust between women and their health-care providers and prevent women from seeking help when they needed it. That could result in greater harm to the child.”
With respect to the Wellington case, Peart also points out that society would likely be less sympathetic if someone other than a father was being prosecuted, for example, a drunken driver causing the death of a fetus. “But the problem is of course that there is no logical basis for distinguishing a drink driver from the father of the child if they were both careless drivers who caused the accident that killed the unborn child. So while we might have less sympathy with the drunk driver, the problem still is that liability for causing death of an unborn chid is problematic.”
Seble Cherie’s Statement
This case has a long way to go yet, and there are other complicating factors. Some of these were expressed by Seble Cherie herself in a statement she wrote for the news media. Rather than try to paraphrase, here’s her statement in full, as provided by John Miller:
Statement for the press, 1 March 2013
(This has been written with the help of a support person and using an interpreter)
Most importantly, I want everyone to know the truth. I support Bililigne 100%, and he did not run a red light. We are Christians. If he was wrong I would not defend him, but tell the truth and apologise immediately for what happened. Bililigne is a taxi driver and he is very lawful and a cautious and careful driver.
I am a victim of this accident, our baby was a victim of this accident. Bililigne is a victim of this accident. We lost our child. We are very sad we lost our baby but I accept this is God’s will, but I do not accept the court case. We are honest people. When the accident happened I believed that God didn’t want to loan me this child, but this is so hurtful, not to be believed, at times I feel more upset about the case.
The Police investigation took six months, all that time we were stressed because they kept telling us they needed more time and this made it hard to grieve for our baby. I feel very hurt by the treatment by Police; I believe in God and always tell the truth.
I remember the accident. I was in the passenger seat. I saw the other car hit us. I think the crash was a terrible accident – no-one intended to hurt anyone – but I also saw a green light. A man helped me out of the car and wrote down his name and phone number on a piece of paper he gave to Bililigne, but now he says we caused the accident. I don’t understand why he changed his mind.
I feel that we have been treated unfairly and not believed. The Police asked me if I wanted to lay charges for the injury to me and to our baby, I said no, but they did it very soon after. I feel that discrimination has played a part in the decision to charge Bililigne.
The media interest after Bililigne was first in court has been terrible for us, contacting us from here and round the world. Reporters came to our home and we had calls from press in America, Britain and Ethiopia as well as the story on the internet.
It has affected our daughter. I am worried for her. People asking questions in front of our daughter, she hears the questions about her father and you can see her face change when people talk about the case. She doesn’t understand, but it worries her. Now I don’t want us to leave our home or answer the phone. We are Christians, but we stopped going to church because of the pressure, it’s too hard when people ask how we are.
Before the accident, I loved living in New Zealand, even though it is hard for us being refugees in a different country. I felt it was a safe and good place for our family. It is hard here for us, but it is a good future for our daughter.
We came to New Zealand from Ethiopia to find the right legal system, for our human rights. Because of the case I feel there is discrimination in the Police. We told the truth. All humans should be treated the same and the system should be fair for everyone.
I am making this statement because I want to tell the truth to the media and then to ask them to respect us. We are private people so this is very hard for us and we want to protect our daughter.
According to an APNZ report in The New Zealand Herald, at the latest hearing in the case on Friday, 28 February, Miller proposed two status hearings for Gebretsadik, one to establish whether he was driving carelessly and, if cleared, that the charge relating to the death be dropped. If not cleared, then a second hearing would be held to determine whether there was a causal link between the crash and the death of the fetus. According to the APNZ report, the judge agreed and Gebretsadik was remanded on bail until the first hearing next month.
*Because this is an on-going case, please comment with care. Thanks.