Unborn Child v Miami Dade Corrections: A Case of Fetal Habeas Corpus

Natalia Harrell is in the Miami Dade Correctional facility pending trial on a murder charge. She claims it was self defense. She is also eight months pregnant. Her lawyer has filed a writ of habeas corpus seeking the release of her unborn child from prison arguing that Harrell’s unborn child is a “person” and is not accused of any crime. This would, of course, require the release of Natalia Harrell until the baby is born.

Habeas corpus, latin for “you have the body,” is a right granted by both the United States and Florida Constitutions. It is intended to compel the release of any person unlawfully detained, including those detained without charges. Counsel for Harrell argues that precisely describes Harrell’s fetus. The writ for habeas corpus is actually brought by “unborn child” through his mother and natural guardian, Natalia Harrell.

The habeas corpus writ states, “unborn child has not been charged with a criminal offense,” and yet is detained in the county jail. The writ argues that at 8 months the unborn child “has eyes, arms, and hopefully developed all aspects of the human body and body functions.” The writ claims the unborn child is a person under the Florida Constitution and that therefore “unborn child’s constitutionally protected due process rights have been clearly violated.”

In pressing the point that the unborn child is a person, counsel for Harrell cites Florida prosecutions for murder when the fetus was killed. For example:

Wyche v. State, 232 So. 3d 1117, 1120 (Fla 1st DCA 2017) (“Because Brooks’s unborn child was a human being entitled to the protection under Florida’s homicide statute, Wyche’s conviction should be affirmed.”

That does seem on point. Accordingly, the writ argues that said “unborn child seeks immediate release from custody of and detention.”

This is part of a series of cases seeking to hoist the legal argument that the fetus is a person by its own petard. Others include claiming a fetus as a tax deduction. There is the entertaining case of Texas resident Brandy Bottone who challenge multiple tickets for driving in the HOV lane on grounds that her fetus was the second passenger. The judge agreed and dismissed her ticket. One Texas legislator filed a bill making clear any pregnant woman could use the HOV lane. I have no idea how any woman could be charged with a HOV violation were it to become law.

In the meantime, no word yet as to whether this unborn child’s assertion of habeas corpus rights will produce a flood of incarcerated women seeking to become pregnant.