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Prolonged and shortened gestation periods from medical and medicolegal standpoints
PR~OLONGED AND SHORTENED GESTATION PERIODS MEDICAL AND MEDICOLEGAL STANDPOINTS” BY
E.
LAWRENCE (Imtructor
in
RICCAFFREY,
Obstetrics
and
M.D., Byneco’ogy,
CM.,
AN~V
University
ARBOR, of
FRO11
MKH.
XirhigaiL)
INCE time immemorial it has been customary to estimate the gfstation period as ten lunar months. Thcrc is no doubt that this reckoning is corrrct in the great majority of cases, but it must always be borne in mind that the length of pregnancy is subject to no law, although it must be admitted that to sotn( caxtont at Itlast, circumstances may influence it. In this review no attempt will t)rb matltb to go into the causes of shortrncd, normal, or protract4 gcstntion p(>riods, but it will be confined as much as possible t,o the lc~gal aspects of the subject. As in every other branch of medicine, WC have to depend upon thr findings in the lower animals for our conclusions so far as experirnclntal work is concerned. In Reid’s series of experiments in cows, he found that the gestation period varied from 260 days to 293 days, a mean of 277 days or a variation of 6 per cent from a single act of coitus. Another series shows a variation of from 252 days to 330 days, or 12 per cent, with a mean of 286 days. In mares, a variation of from 311 days to 394 days, or 12 per cent, with a mean of 352 days, has been demonstrated. The same variation naturally must occur in the human. Ovulation is known to occur some time during the middle ten days of the intermenstrual period. It has been shown by Diihrssrn that spcarmatozon may remain alive in the genital tract at lcast twentyFrom thcsp fucats it would 1~ quite tlircc? days after insemination. possible to explain many of the so-rallcd protrac~tc~tl gcstal ion p’ll,iods. When called to testify before a Court of Law. it shoultl bc rcmcmb~~rctl that ‘it is not the duty of the physician to give his opinion of a case. All that is necessary is that hc statn facts. Judge F. B. Ilutton, speaking before the Medical Society of Virginia, cmphasizcd this in the following words: “It is a maxim of the law, and I may say, one of the familiar principles in the law of evidence, that the opinions of witnesses are, in general, irrelevant. Reasoning is the proper function of the judge, jury and counsel, and it is not a part of the normal function of the witness.” All that is necessary to prove this to one’s own satisfaction is to look over the records of a few cases which have been tried before the courts. Here can be found great variations in the length of the gestation period from a legal point of view. Il’ortunatc or unfortunate as it may be, thcrc is no definite law laid S
“F1’0t11 thr2 Dr~l,aI’tnll~nt
Of Obst~trits
end C~ynccology, 107
Iinivvmity
of Michigan,
108
THE
AMERICBN
JOTJRNAI,
OF
OBSTETRICS
AKD
CTNIKOT.OGF
down in any English-speakin g country as to the actual length of the gestation period, although the old Scotch law says that 168 days is the earliest time at which a child may be born alive. In Austria, the law recognizes the legitimacy of the child born 240 days after marriage, or 307 days after the death of the husband. In France, t,he legitimacy of the infant born 300 days after the dissolution of the That this law is not unanimously marriage is liable to be contested. favored either by the civil or medical authorities is proved by the fact that in 1906, a commission was formed to alter the Civil Code, but unfortunately no great success was achieved. Article 252 of the Swiss Civil ICode states: 1. “The child born during the marriage, or in the 300 days after the dissolution of the mat*riag(l has the husbantl for a father. 2. The child born after 300 days is llot prc~sumed lcgit-of More than Thrc~ imate. ” In an articlc entitled, “A Pregnancy Hundred Days and Article 252 of the Swiss Civil Code,” Maillart rc’ports a case in which he saw a patient 47 days after the last menstruation, or 16 days after she had missed the last period. He found the cervix softened and also positive findings in the breasts. The patierlt was delivered of a baby girl weighing 4515 grams, 323 days after the first day of the last menstruation. Of the cases which come before the Courts, there arc two main groups : 1. When the child is born out of wedlock. 2. When
the child is born in wedlock.
In this short review, no attempt will be made to give the details nf medicolegal cases,. nor will a series of such cases be given. Examples of cases and the decision reached will be quoted in each subdivision of the two aforementioned groups. I.
(I)
CHILD
BORN
CUT
OF
WEDLOCK
Bastardy, where the question of paternity is at stake. (a) In the case of Duck vs, The State (cx. rel. Dill .27 Ind., BZU), the defendant offered to prove that relatrix had had sexual intercourse 322 days before the birth of the child with another person and the evidence was rejected. (a)
In the case of Commonmorth vs. Hoover, (‘3 Clnrk, Pa., 5.24) 313 days mere allowed for t,he gestation period. (c) In the ltaso of United States vs. Collins, tried (before the United States District Court for the District of Columbia in lSO9, the Court limited the inquiry as to connection with other men than defendant to not more than twelve months nor less than six months before tho birth of the child. d In the ease of Paul against Pedlcford, (1G Gray Mass. d63) the Court refused to allow proofs of action ,of intercourse of the p!aintiff with other persons than the defendant at a time more than ten months and twelve days before the birth of the child. (P) In the case of Erirkson vs. Schmidt (68 Neb. 568) although the man proved immorality on the part of the plaintiff with ‘other men out-
MC
CAFFREY
:
PROLONGED
AND
SHORTENED
GESTATION
PERIODS
1fl:)
side the normal gestation period, it was rejected and ho was m:~(h~ t.o support the child. (f) In the case of Commonwealth vs. Porter, (Cnmbria Co., Pa.. I, the defendant was called the father of the child whi’ch was born 317 days after intercourse.
Because the question of paternity in bastardy’ cases makes up the large majority of cases which come before the courts, several cases have been cited which are more or less typical and where many different opinions were voiced. In case a, 322 days were considered too long for the gestation period. In case b, 313 days were allowed. In case c, twelve and six months were regarded as the outside limits of the gestation period. In case d, 312 days were allowed. In case e, the normal gestation period is not stated. In case f, the gestation period was considered to be 317 days. (2) Horn after death of father. (a) In the case of Foster vs. Cook, (3 Brown’s Rep., Edin. ZW), the child was born 43 weeks or 301 days after the death of the husband. The husband was considered the father of the child. (3) Born after divorce or separation. (a) In the Gardner Peerage case (HOUY of Lords, 18M), the former husband had been absent 312 days wh’en the child was born. The child was called illegitimate lbsecause of the adultery proved on the part of the mother and not as far as the length of the gestation period was concerned. (b) In the cast of Russell vs. Russell, (1914 A. C. Pt. 4, 687), in which a decision has just been handed down, the facts are quite different. The husband and wife, who were later divorced, occupied the same bed 290 days before the birth of the &Id, on two successive nights. The husband denied that there had been intercourse and proved adultery on the part of the wife with an unknown man during that time. But the evidence which he gave as regards there being no intercourse was not allowed. The child was called legitimate. II.
CHILD
BORN
IN
WEDLOCK
(1) Before the expiration of the normal gestation period. (a) In the case of Phillips vs. All’en, (lb Allen, Mass., 4531, the child was born eight months after marriage and was declared legitimate. (b) In the Jardine ease in Scotland, where the child was born 171 days after marriage and lived seven months, the libel against the parents was considered not proved. (2) In absence of father. (Exeter Summer Assizes, (a) In the case of Luscombe vs. Pettyjohn 1840), it was shown that the husband and wife had last meeting 299 days before the birth of the child. The child was declared legitimate. (3) Separation of husband and wife. (a) In the case of Estate of McNamam, (181 Calif. 82), the mother of the child left her husband to live with another man. The child was born 304 days after the last possible intercourse. Here the child was declared the son of the paramour and not of the husband.
110
THE (b)
AMERICAN
JOURNAL
OF
OBSTETRICS
AND
GYNECOLOGY
In the case of Bosville vs. Attorney General, (L. 177’), the child was born 276 days after the mother Here the child was found illegitimate by the jury.
R. 28 Prob. Div. left the husband.
In looking over these cases, it is easily seen that judges, juries and the medical profession vary greatly in their ideas as to the length of the gestation period. All one can do in such cases is to state what he knows to be the facts. Bessinger has reported a gestation period of 336 days, which is the outside limit of reported cases as regards protracted gestations. The fairly authentic case in England where a son was born July 7, 1781, and lived to maturity, and a daughter born January 5, 1782, or 182 days after her brother, and lived to marry, should warn us not to state that the gestation period for a viable child is six and a half months., There are a great many circumstances which must be taken into consideration, such as the intermenstrual interval of the woman, heredity, the size of the child, etc., but usually not a great deal of stress is laid upon these in the courts. Day, in a report of 25 cases’in private practice has noted that the longer the intermenstrual interval, the longer will be the gestation period, and in shorter intervals the findings were the opposite. It has been shown in some families that the gestations are longer or shorter than normal. SchickeM reported the case of a woman pregnant for the eleventh time, who could not understand why she was so large. Two hundred sixty-five days after the first day of her last menstrual period she was delivered of a child 57 cm. in length and weighing 5740 grams. He reported another case where the child was born 304 days after the first day of the last menstruation and was 49 cm. in length and weighed 2550 grams. The words of T. Watts Eden make a very fitting conclusion. “Sufficient medical data have been accumulated to show that human gestation may be prolonged to a period of 336 calculated days, and there is nothing in the meantime to show that even this figure is the outside limit beyond which prolongation of pregnancy is impossible.” REFERENCES Taylor: Principles and Practice of Medical Jurisprudence, London, 1910. Virginia Med. Month., 1921, xlviii, 467. Tidy: Legal Medicine, Philadelphia, 1882. Witthaus and &cker: Medical Jurisprudence, New York, 1896. L’article 315 du Code Civil, France. Ann. de gyn&. et d’obst., 1906, lxiii, 396. Maillart : Revue MiZ6dieale de la Suisse Bomande, 1914, xxxiv, 268. Schlichting: Arch. f. gynkk., 1880, xvi, 203. Day : Boston Med. and Burg. Jour., 1920, elxxxiii, 686. SchiekelB, G. : Gynec. et Obst., 1922, v, 590. Eden : Jour. Am. Med. Assn., 1921, lxxvii, 716. Eden: Lancet, 1923, cciv, 1199.
E.
LAWRENCE (Imtructor
in
RICCAFFREY,
Obstetrics
and
M.D., Byneco’ogy,
CM.,
AN~V
University
ARBOR, of
FRO11
MKH.
XirhigaiL)
INCE time immemorial it has been customary to estimate the gfstation period as ten lunar months. Thcrc is no doubt that this reckoning is corrrct in the great majority of cases, but it must always be borne in mind that the length of pregnancy is subject to no law, although it must be admitted that to sotn( caxtont at Itlast, circumstances may influence it. In this review no attempt will t)rb matltb to go into the causes of shortrncd, normal, or protract4 gcstntion p(>riods, but it will be confined as much as possible t,o the lc~gal aspects of the subject. As in every other branch of medicine, WC have to depend upon thr findings in the lower animals for our conclusions so far as experirnclntal work is concerned. In Reid’s series of experiments in cows, he found that the gestation period varied from 260 days to 293 days, a mean of 277 days or a variation of 6 per cent from a single act of coitus. Another series shows a variation of from 252 days to 330 days, or 12 per cent, with a mean of 286 days. In mares, a variation of from 311 days to 394 days, or 12 per cent, with a mean of 352 days, has been demonstrated. The same variation naturally must occur in the human. Ovulation is known to occur some time during the middle ten days of the intermenstrual period. It has been shown by Diihrssrn that spcarmatozon may remain alive in the genital tract at lcast twentyFrom thcsp fucats it would 1~ quite tlircc? days after insemination. possible to explain many of the so-rallcd protrac~tc~tl gcstal ion p’ll,iods. When called to testify before a Court of Law. it shoultl bc rcmcmb~~rctl that ‘it is not the duty of the physician to give his opinion of a case. All that is necessary is that hc statn facts. Judge F. B. Ilutton, speaking before the Medical Society of Virginia, cmphasizcd this in the following words: “It is a maxim of the law, and I may say, one of the familiar principles in the law of evidence, that the opinions of witnesses are, in general, irrelevant. Reasoning is the proper function of the judge, jury and counsel, and it is not a part of the normal function of the witness.” All that is necessary to prove this to one’s own satisfaction is to look over the records of a few cases which have been tried before the courts. Here can be found great variations in the length of the gestation period from a legal point of view. Il’ortunatc or unfortunate as it may be, thcrc is no definite law laid S
“F1’0t11 thr2 Dr~l,aI’tnll~nt
Of Obst~trits
end C~ynccology, 107
Iinivvmity
of Michigan,
108
THE
AMERICBN
JOTJRNAI,
OF
OBSTETRICS
AKD
CTNIKOT.OGF
down in any English-speakin g country as to the actual length of the gestation period, although the old Scotch law says that 168 days is the earliest time at which a child may be born alive. In Austria, the law recognizes the legitimacy of the child born 240 days after marriage, or 307 days after the death of the husband. In France, t,he legitimacy of the infant born 300 days after the dissolution of the That this law is not unanimously marriage is liable to be contested. favored either by the civil or medical authorities is proved by the fact that in 1906, a commission was formed to alter the Civil Code, but unfortunately no great success was achieved. Article 252 of the Swiss Civil ICode states: 1. “The child born during the marriage, or in the 300 days after the dissolution of the mat*riag(l has the husbantl for a father. 2. The child born after 300 days is llot prc~sumed lcgit-of More than Thrc~ imate. ” In an articlc entitled, “A Pregnancy Hundred Days and Article 252 of the Swiss Civil Code,” Maillart rc’ports a case in which he saw a patient 47 days after the last menstruation, or 16 days after she had missed the last period. He found the cervix softened and also positive findings in the breasts. The patierlt was delivered of a baby girl weighing 4515 grams, 323 days after the first day of the last menstruation. Of the cases which come before the Courts, there arc two main groups : 1. When the child is born out of wedlock. 2. When
the child is born in wedlock.
In this short review, no attempt will be made to give the details nf medicolegal cases,. nor will a series of such cases be given. Examples of cases and the decision reached will be quoted in each subdivision of the two aforementioned groups. I.
(I)
CHILD
BORN
CUT
OF
WEDLOCK
Bastardy, where the question of paternity is at stake. (a) In the case of Duck vs, The State (cx. rel. Dill .27 Ind., BZU), the defendant offered to prove that relatrix had had sexual intercourse 322 days before the birth of the child with another person and the evidence was rejected. (a)
In the case of Commonmorth vs. Hoover, (‘3 Clnrk, Pa., 5.24) 313 days mere allowed for t,he gestation period. (c) In the ltaso of United States vs. Collins, tried (before the United States District Court for the District of Columbia in lSO9, the Court limited the inquiry as to connection with other men than defendant to not more than twelve months nor less than six months before tho birth of the child. d In the ease of Paul against Pedlcford, (1G Gray Mass. d63) the Court refused to allow proofs of action ,of intercourse of the p!aintiff with other persons than the defendant at a time more than ten months and twelve days before the birth of the child. (P) In the case of Erirkson vs. Schmidt (68 Neb. 568) although the man proved immorality on the part of the plaintiff with ‘other men out-
MC
CAFFREY
:
PROLONGED
AND
SHORTENED
GESTATION
PERIODS
1fl:)
side the normal gestation period, it was rejected and ho was m:~(h~ t.o support the child. (f) In the case of Commonwealth vs. Porter, (Cnmbria Co., Pa.. I, the defendant was called the father of the child whi’ch was born 317 days after intercourse.
Because the question of paternity in bastardy’ cases makes up the large majority of cases which come before the courts, several cases have been cited which are more or less typical and where many different opinions were voiced. In case a, 322 days were considered too long for the gestation period. In case b, 313 days were allowed. In case c, twelve and six months were regarded as the outside limits of the gestation period. In case d, 312 days were allowed. In case e, the normal gestation period is not stated. In case f, the gestation period was considered to be 317 days. (2) Horn after death of father. (a) In the case of Foster vs. Cook, (3 Brown’s Rep., Edin. ZW), the child was born 43 weeks or 301 days after the death of the husband. The husband was considered the father of the child. (3) Born after divorce or separation. (a) In the Gardner Peerage case (HOUY of Lords, 18M), the former husband had been absent 312 days wh’en the child was born. The child was called illegitimate lbsecause of the adultery proved on the part of the mother and not as far as the length of the gestation period was concerned. (b) In the cast of Russell vs. Russell, (1914 A. C. Pt. 4, 687), in which a decision has just been handed down, the facts are quite different. The husband and wife, who were later divorced, occupied the same bed 290 days before the birth of the &Id, on two successive nights. The husband denied that there had been intercourse and proved adultery on the part of the wife with an unknown man during that time. But the evidence which he gave as regards there being no intercourse was not allowed. The child was called legitimate. II.
CHILD
BORN
IN
WEDLOCK
(1) Before the expiration of the normal gestation period. (a) In the case of Phillips vs. All’en, (lb Allen, Mass., 4531, the child was born eight months after marriage and was declared legitimate. (b) In the Jardine ease in Scotland, where the child was born 171 days after marriage and lived seven months, the libel against the parents was considered not proved. (2) In absence of father. (Exeter Summer Assizes, (a) In the case of Luscombe vs. Pettyjohn 1840), it was shown that the husband and wife had last meeting 299 days before the birth of the child. The child was declared legitimate. (3) Separation of husband and wife. (a) In the case of Estate of McNamam, (181 Calif. 82), the mother of the child left her husband to live with another man. The child was born 304 days after the last possible intercourse. Here the child was declared the son of the paramour and not of the husband.
110
THE (b)
AMERICAN
JOURNAL
OF
OBSTETRICS
AND
GYNECOLOGY
In the case of Bosville vs. Attorney General, (L. 177’), the child was born 276 days after the mother Here the child was found illegitimate by the jury.
R. 28 Prob. Div. left the husband.
In looking over these cases, it is easily seen that judges, juries and the medical profession vary greatly in their ideas as to the length of the gestation period. All one can do in such cases is to state what he knows to be the facts. Bessinger has reported a gestation period of 336 days, which is the outside limit of reported cases as regards protracted gestations. The fairly authentic case in England where a son was born July 7, 1781, and lived to maturity, and a daughter born January 5, 1782, or 182 days after her brother, and lived to marry, should warn us not to state that the gestation period for a viable child is six and a half months., There are a great many circumstances which must be taken into consideration, such as the intermenstrual interval of the woman, heredity, the size of the child, etc., but usually not a great deal of stress is laid upon these in the courts. Day, in a report of 25 cases’in private practice has noted that the longer the intermenstrual interval, the longer will be the gestation period, and in shorter intervals the findings were the opposite. It has been shown in some families that the gestations are longer or shorter than normal. SchickeM reported the case of a woman pregnant for the eleventh time, who could not understand why she was so large. Two hundred sixty-five days after the first day of her last menstrual period she was delivered of a child 57 cm. in length and weighing 5740 grams. He reported another case where the child was born 304 days after the first day of the last menstruation and was 49 cm. in length and weighed 2550 grams. The words of T. Watts Eden make a very fitting conclusion. “Sufficient medical data have been accumulated to show that human gestation may be prolonged to a period of 336 calculated days, and there is nothing in the meantime to show that even this figure is the outside limit beyond which prolongation of pregnancy is impossible.” REFERENCES Taylor: Principles and Practice of Medical Jurisprudence, London, 1910. Virginia Med. Month., 1921, xlviii, 467. Tidy: Legal Medicine, Philadelphia, 1882. Witthaus and &cker: Medical Jurisprudence, New York, 1896. L’article 315 du Code Civil, France. Ann. de gyn&. et d’obst., 1906, lxiii, 396. Maillart : Revue MiZ6dieale de la Suisse Bomande, 1914, xxxiv, 268. Schlichting: Arch. f. gynkk., 1880, xvi, 203. Day : Boston Med. and Burg. Jour., 1920, elxxxiii, 686. SchiekelB, G. : Gynec. et Obst., 1922, v, 590. Eden : Jour. Am. Med. Assn., 1921, lxxvii, 716. Eden: Lancet, 1923, cciv, 1199.