DEFINITION OF THE TERM “LIVE BIRTH”
IN CIVIL CASES
The evidence of live birth in civil is somewhat different from that required in criminal cases. The viability of the child is determined in Scotland by its crying; in France, by its respiration; in Germany, “the LIVE BIRTH of a child is to be held proven when it has been heard to cry by witnesses of unimpeachable veracity present at its birth”; but in England, the pulsation of the child‘s heart, or any tremulous motion of the muscles, however slight, has been considered as satisfactory proof of live birth.[15]
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.”
Signs of Live Birth prior to Respiration, and independent of it.—(1) Negative.—Signs of intra-uterine death, i.e. putrefaction, or “intra-uterine maceration,” or of such imperfect development that it could not have been born alive. (2) Positive.—Injuries to the child showing that it must have been born alive.
1. Negative.—Intra-uterine Putrefaction.—This condition differs in some remarkable points from putrefaction in air.
The body is extremely flaccid and flattened, the bones of the cranium moving easily on one another. The skin of the hands and other parts of the body bear the evidence of prolonged soaking in fluid. In parts, the skin is whitish, or of a reddish-brown or coppery-red colour, without any trace of green, which is always present when putrefaction takes place in the air. The cuticle may be raised in blisters, and be easily detached from the true skin. The denuded patches are moist and greasy, and exude a stinking, reddish-coloured serous fluid. The face is flattened, and the features distorted. In one case that Husband attended of intra-uterine death of the fœtus in a primipara, and where putrefaction was far advanced, the scalp burst during delivery, and the brain was poured out. Should, however, the child be exposed to the air, it may soon acquire the appearances proper to putrefaction in that medium. If the child, immediately after birth, be thrown into water, the putrefactive changes would be like those of intra-uterine decomposition. In this case the lungs must be examined for the evidence of death by drowning.
2. Positive.—Evidence that injuries found on the body could not have been inflicted during birth, or accidentally after birth. On this subject it is scarcely possible to give an opinion one way or the other. All the medical witness can fairly state is, that, from the condition of the lungs, respiration has or has not taken place; that, in the former case, it is not easy to state whether the injuries were the cause of death or inflicted after death.
Appearances showing that a New-Born Child has breathed.—1. Walls of the Chest.—“The vaulting of the thorax is not of the slightest diagnostic value.” Casper quotes from Elsässer the following remarks: “It is irrefutable that the variations in the circumference of the thorax (and, of course, in its diameters) are so considerable that no certain normal mean for a thorax that has breathed, and for one that has not breathed, can be laid down. In most cases the measurements of the thorax are incapable of determining whether the lungs contain air or not. The reasons for these variations is, without doubt, to be referred to the congenital differences in the volume of the osseous thorax; partly, also, to the thickness of the soft parts, particularly of the subcutaneous fat and the thoracic muscles; partly, also, to the differences in the degree and amount of the dilatation of the thorax by respiration, with which the distension of the lungs also corresponds,” &c.
2. Diaphragm.—The position of the diaphragm may be considered as a good diagnostic sign; for it is found that, in children born dead, the highest point of the concavity is between the fourth and fifth ribs, whereas in those born alive it is between the fifth and sixth. The position of the diaphragm may be affected by the gases produced during putrefaction, and also, in children who have breathed, from distension of the stomach and intestines with gas.
3. Stomach and Intestines.—With regard to the stomach, Tardieu has suggested that the presence of air-bubbles in the glairy mucus usually found in that organ is a sign of live birth, as it can only have arisen from the swallowing of saliva and mucus, aerated by repeated attempts at respiration, probably lasting from five to fifteen minutes. Air in the duodenum is strong evidence of live birth. Breslau of Prague, who has further investigated this subject, states that, in children born dead, or who have undergone prolonged intra-uterine putrefaction, there is never any accumulation of gas in the stomach or intestines, and that the presence of gas in these organs is contemporaneous with respiration, and is independent of the ingestion of food. The intestines of newly-born children do not float in water, but rapidly sink in that fluid. As respiration proceeds, the coils of the intestines become distended with gas.