Byrn v. New York City Health & Hospitals Corp.

• Decision Date: 07 July 1972
• Citation: 286 N.E.2d 887,31 N.Y.2d 194,335 N.Y.S.2d 390
• Court: New York Court of Appeals Court of Appeals
• Parties: , 286 N.E.2d 887 Robert M. BYRN, as Guardian ad Litem for an Infant, 'Roe', an Unborn Child and All Similarly Unborn Infants, Appellant, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION et al., Respondents.

Page 390

335 N.Y.S.2d 390

31 N.Y.2d 194, 286 N.E.2d 887

Robert M. BYRN, as Guardian ad Litem for an Infant, 'Roe' an Unborn Child and All Similarly Unborn Infants, Appellant, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION et al., Respondents.

Court of Appeals of New York.

July 7, 1972.

Thomas J. Ford, Brooklyn, Robert M. Byrn, pro se, Thomas Grimes, Brooklyn, and A. Lawrence Washburn, Jr., for appellant.

Louis J. Lefkowitz, Atty. Gen. (Joel Lewittes, Samuel A. Hirshowitz and Iris A. Steel, New York City, of counsel), respondent, pro se. J. Lee Rankin, Corporation Counsel (James J. Nespole and Frances Milberg, New York City, of counsel), for New York City Health & Hospitals Corporation, respondent.

Nancy Stearns, Rhonda Copelon Schoenbrod, Janice A. Goodman and Kenneth Norwick, New York City, for Women's Health & Abortion Project, Inc., intervenor-respondent.

Michael F. Sheehan and William A. Ryan, Huntington Station, for Celebrate Life and others, amici curiae.

Frederic S. Nathan, Harriet F. Pilpel, Nancy F. Wechsler and Ruth Jane Zuckerman, New York City, for Citizens Committee for Children of New York, Inc. and others, amici curiae.

Harold A. Mahony, Freeport, for Committee for Human Life, amicus curiae.

Mildred A. Shanley, Brooklyn, for Arlethia Gilliam and others, amici curiae.

Ralph L. Concannon and Benjamin Borind, New York City, and John R. Klein, for The Guild of Catholic Lawyers and others, amici curiae.

Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham, Dolores B. Horan, John D. Gorby, Chicago, Ill., and Porter R. Chandler, New York City, for Bart Heffernan and others, amici curiae.

Cyril C. Means, Jr., New York City, for National Association for Repeal of Abortion Laws, Inc. and another, amici curiae.

Thomas J. Dillon, Jamaica, for New York State Council, Knights of Columbus and another, amici curiae.

Stephen W. O'Leary, Jamaica, for New York State Doctors & Nurses Against Abortion, amicus curiae.

Edith M. Novack, Carol Bellamy, Elizabeth Holtzman, Mary F. Kelly and K. Randlett Walster, New York City, for New Women Lawyers and others, amici curiae.

Eugene J. McMahon, Richmond Hill, for Women for the Unborn, amicus curiae.

BREITEL, Judge.

This is an action for declaratory judgment by a guardian ad litem for unborn children to declare the 1970 abortion 'liberalization' statute unconstitutional (L.1970, ch. 127). Plaintiff obtained a temporary injunction at Special Term to restrain defendants from 'performing any abortional acts' except where the mother's life was endangered. The temporary injunction was stayed pending appeal, and on appeal the Appellate Division, 38 A.D.2d 316, 329 N.Y.S.2d 722, by a divided court, reversed, vacated the injunction, and remanded the case to Special Term to enter a declaratory judgment sustaining the validity of the statute. It in effect granted summary judgment. No party questions the procedure.

The issue, a novel one in the courts of law, is whether children in embryo are and must be recognized as legal persons or entities entitled under the State and Federal Constitutions to a right to life. It is not effectively contradicted, if it is contradicted at all, that modern biological disciplines accept that upon conception a fetus has an independent genetic 'package' with potential to become a full-fledged human being and that it has an autonomy of development and character although it is for the period of gestation dependent upon the mother. It is human, if only because it may not be characterized as not human, and it is unquestionably alive.

The issue has been debated below and in this court on two levels. The first level turns on the legal history of the concept of persons in the law and of the act of abortion. That history is spelled out beyond the need for repetition or elaboration in the majority opinion at the Appellate Division. The answer is clear enough. Unborn, and even unconceived, children have been recognized as acquiring rights or interests in narrow legal categories involving the inheritance or devolution of property (e.g., Endresz v. Friedberg, 24 N.Y.2d 478, 483, 301 N.Y.S.2d 65, 68, 248 N.E.2d 901, 903). Fetuses, if they are born alive, have been entitled in modern times to recover in tort for injuries sustained through the host mother (Woods v. Lancet, 303 N.Y. 349, 352--356, 102 N.E.2d 691, 692--695; Kelly v. Gregory, 282 App.Div. 542, 543, 125 N.Y.S.2d 696). Indeed, unconceived children have been represented in proceedings affecting property by guardians ad litem (SCPA 315; Ann., Trust--Invasion of Corpus, 49 A.L.R.2d 1095).

But unborn children have never been recognized as persons in the law in the whole sense. In ancient days it was even said that they were not In rerum natura. As for abortion, when the act has been made criminal or otherwise unlawful in the law, the direct design was evidently to protect the mother from injury and dangerous practices (Means, The Phoenix of Abortional Freedom, 17 New York Law Forum 335). It has been argued, of course, that anti-abortion laws were also designed to protect the fetus; but the argument is hard to sustain so long as there have been provisions that limited unlawful abortions to pregnancies after 'quickening' and abortions have been justified to protect the mother even though it meant destruction of the fetus.

In any event, the historical analysis is interesting, not determinative, and only of limited influence. Both those who attack the present statute and those who defend it must and do rely ultimately on modern science and particularly modern asepsis and techniques to mount their attacks or defend their positions.

The second level of debate is the real one, and that turns on whether a human entity, conceived but not yet born, is and must be recognized as a person in the law. If so, it is argued that the person is immediately subsumed under the class entitled to constitutional protection, it being assumed that an entity if treated anywhere in the law as a person must be so treated for all purposes. Issue is never really joined at this level because the antagonists are talking about different things although they use the same terminology. Conceptually, whether in philosophy or in religious doctrine, and the doctrine is not confined to any one religion, a conceived child may be regarded as a person, albeit at a fetal stage. It is not true, however, that the legal order necessarily corresponds to the natural order (see, e.g., Bertholf v. O'Reilly, 74 N.Y. 509, 514--515). That it should or ought is a fair argument, but the argument does not make its conclusion the law. It does not make it the law anymore than that the law by recognizing a corporation or a partnership as persons, or according property rights to unconceived children, make these 'natural' nonentities facts in the natural order.

When the proposition is reduced to this simple form, the difficulty of the problem is lessened. What is a legal person is for the law, including, of course, the Constitution, to say, which simply means that upon according legal personality to a thing the law affords it the rights and privileges of a legal person (e.g., Kelsen, General Theory of Law and State, pp. 93--109; Paton, Jurisprudence (3d ed), pp. 349--356, esp. pp. 353--354 as to natural persons and unborn children; Friedmann, Legal Theory (5th ed.), pp. 521--523; Gray, The Nature and Sources of the Law (2d ed.) ch. II). The process is, indeed, circular, the law should accord legal the process is, indeed, circular, personality is a policy question which in most instances devolves on the Legislature, subject again of course to the Constitution as it has been 'legally' rendered. That the legislative action may be wise or unwise, even unjust and violative of principles beyond the law, does not change the legal issue or how it is to be resolved. The point is that it is a policy determination whether legal personality should attach and not a question of biological or 'natural' correspondence.

The principles were aptly illustrated by Gray:

'Included in human beings, normal and abnormal, as legal persons, are all living beings having a human form. But they must be living beings; corpses have no legal rights. Has a child begotten, but not born, rights? There is no difficulty in giving them to it. A child, five minutes before it is born, has as much real will as a child five minutes after it is born; that is, none at all. It is just as easy to attribute the will of a guardian, tutor, or curator to the one as to the other. Whether this attribution should be allowed, or whether the embryo should be denied the exercise of legal rights, is a matter which each legal system must settle for itself. In neither the Roman nor the Common Law can a child in the womb exercise any legal rights.

'But putting an end to the life of an unborn child is generally in this country an offence by statute against the State; and in our Law a child once born is considered for many purposes as having been alive from the time it was begotten.' (op. cit., Supra, at pp. 38--39).

Paton, cited above, is worth repeating in some detail:

'In ancient systems not all human beings were granted legal personality. The case of the slave is too well known to need stressing. A monk who enters a monastery is regarded in some systems as being 'civilly dead' and his property is distributed just as if death had in fact taken placed. In modern times it is normal to grant legal personality to all living within the territory of the State.

'Most systems lay down the rule that, in cases where legal personality is granted to human beings, personality begins at birth and ends with death.

'In the case of birth, most systems require complete extrusion from the mother's body--the child in the womb is not a legal personality and can have no rights. For some purposes, however, the maxim Nasciturus pro iam nato habetur takes effect. In the civil law the fiction was...