Texas Wesleyan Law Review

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This Comment argues that Texas should provide protection for viable fetuses by recognizing criminal liability of a third party for fetal injury resulting in death. Part I explores the development of fetal rights in the common law and examines modern trends in the recognition of fetal homicide. Part II analyzes fetal rights in Texas and highlights the inconsistencies in various areas of Texas law with respect to rights granted to the unborn. Finally, Part III proposes changes to the law in Texas to incorporate criminal liability of a third party for fetal homicide into the Texas penal system. This Comment offers both an approach for the judiciary that is consistent with Texas jurisprudence as well as proposed changes to existing Texas penal statutes. With regard to the judiciary, this Comment offers a hybrid between two distinct approaches to protection of the fetus: the Born Alive Rule and the Viability Theory. With regard to Texas's penal statutes, this Comment argues that a broadening of the definition of individual to include a viable fetus is legally sound both in its integration with current law as well as its application in the criminal context.



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