ON THE PERIOD OF HUMAN GESTATION. "Sui juris rerum natura est, nec ad leges humanas componitur, modò properat, modò vota præcurrit, modò lenta est, et demoratur."-SENECA. WHETHER we regard the question of the period of human gestation in reference to the determination of its natural, or ordinary limits, or turn our attention to the still more debated question of its protraction, we find, connected with the investigation, a multitude of considerations of deep and varied interest; when viewed, on the one hand, as subjects of physiological inquiry, and, on the other, of paramount importance, as connected with the due administration of law and justice; and involving, moreover, some of the most delicate investigations which affect our social relations, and our professional duties. It is sufficient only to remember that the purity of virtue, the honor and peace of domestic life, legitimacy, and the succession to rank, titles, and property, not unfrequently depend solely for their invalidation, or establishment, on the settlement of this question; while the fact to be established is, unfortunately, one which does not always admit of being tested by any fixed criterion either in law or physiology, but, on every new occasion of doubt or difficulty, depends for its elucidation on the contradictory evidence of witnesses, and the opinion that may, in the particular instance discussed, be formed by judges or committees, of the connection between facts stated and admitted, and their relations with other circumstances, in general not admitting of any certain or satisfactory method of proof; and independently of these less ordinary occasions, the daily routine of professional life is constantly bringing before us for solution, a number of questions of con siderable difficulty, and often of no less delicacy, on which we are required to give opinions, which are to guide or influence others in matters of the deepest interest and importance to their welfare. In the laws of this country which bear upon the question of legitimacy, and the period of human gestation, there is frequent reference to "the usual period of gestation," "the course of nature," "the laws of nature," &c., a conformity to which, in the birth of any individual whose legitimacy may happen to be questioned, constitutes one of the requisites essentially necessary to satisfy the law; which, however, does not more strictly define the legitimum tempus pariendi than by declaring it to be, usually, nine calendar months, or forty weeks; and Blackstone says: "From what has been said, it appears that all children born before matrimony are bastards by our law; and so it is of all children born so long after the death of the husband, that by the usual course of gestation they could not be begotten by him. But this being a mat. ter of some uncertainty, the law is not exact as to a few days." Hence, the legitimacy and civil rights of children born within that period are, as far as the time of gestation is concerned, acknowledged in law.3 Farther than this, neither our laws, nor those of America, fix any precise limit; but, whenever a question is brought before the judges, involving the determination of the usual period of gestation in women, and the variations to which it may be liable, the matter is made, on every new occasion of the kind, a subject of discussion, to be decided by the evidence of witnesses examined at the time; and the facts proposed to be investigated, in reference to such questions, generally are: I. The natural period of gestation in women; II. Premature births as affecting the viability of children; III. The possibility of protracted gestation: each of which I shall now proceed to consider; premising that by the period of gestation, we are to understand the interval "Quod tempus est usitatum mulieribus pariendi."-Lord Hale, in note in Coke on Littleton, fol. 8. 2 Commentaries, vol. i. p. 456. According to Britton des Gardes, the old English code specified forty weeks as the limit of legitimacy. between impregnation, or the fruitful intercourse which produces it, and the commencement of parturition. I. Natural Period of Gestation in Women.-With regard to this point, it must be confessed that our knowledge is by no means either so extensive or precise as might be, at first sight, expected in a matter apparently capable of being made the subject of daily observation; but the fact is, that we are very rarely able to ascertain, with anything like certainty, the exact time of conception; and, consequently, having in general, only one end of the chain, we can have no certain mode of counting the number of links of which it consists; and it is to be feared that it can hardly be otherwise until we meet in society more numerous imitators of Zenobia, the beautiful Queen of Palmyra, who, if we are to credit Trebellius Pollio, "never admitted her husband's embraces, but for the sake of issue; if her hopes were baffled, in the ensuing month she reiterated the experiment:" but in the existing rarity of such instances of self-command, we are obliged to acknowledge, with regret, that, "as it is difficult to conceal the termination of pregnancy, so is it equally difficult to ascertain its commencement." Still, however, I think we are in possession of facts sufficient to warrant our belief, that the natural period of gestation is forty weeks, or 280 days, which is also the period acknowledged in law. A good deal of confusion on this point seems to have arisen, from considering forty weeks, and nine calendar months, as one and the same quantity of time, whereas, in fact they differ by from five to eight days. Nine calendar months make 275 days, or if February be included, only 272 or 273 days; that is, thirty-nine weeks only, instead of forty. Yet, we constantly find in books on law, and on medical jurisprudence, the expression, "nine months, or forty weeks;" and in a remarkable case,3 tried in Scotland in 1837, this error was committed by some of the 1 See Coke upon Littleton, 123, b. Vide Coke upon Litt., loc. cit., and Paris and Fonblanque, vol. i. p. 241. Smith's Principles of Forensic Medicine, p. 491. Dewees' Compendium of Midwifery, p. 164. Mr. Burns more accurately says, "nine calendar months and a week:" Principles of Midwifery, p. 168. The Parishioners of Kinghorn against the Rev. Fergus Jardine, to which trial I must refer more particularly hereafter. |