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The endgame of 'fetal personhood'

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In February, under the state's fetal personhood clause, Alabama's Supreme Court ruled that frozen embryos from in vitro fertilization (IVF) are considered "unborn children." The ruling allows lawsuits if the loss of an embryo is caused by "the wrongful act, omission, or negligence of any person." The court cited the clause in the state constitution, which voters approved in 2018 to recognize "the rights of the unborn child," including the right to life.

In the recent Texas Republican Party Convention in San Antonio the idea of fetal personhood led the delegates to adopt a policy plan that proclaimed that “abortion is not healthcare it is homicide.” Their position is they support applying the death penalty to abortion providers and the women who receive an abortion.

Elsewhere in the platform, the Texas GOP calls for “legislation to abolish abortion by immediately securing the right to life and equal protection of the laws to all preborn children from the moment of fertilization.”

Fetal personhood laws, when taken to the extreme, expose inherent absurdities and impracticalities. Imagine a legal framework where a fetus is granted the same rights as a living person from conception. This could lead to scenarios where pregnant women are legally obligated to prioritize the fetus's well-being over their own, facing potential criminal charges for behaviors deemed harmful, such as consuming certain foods or engaging in physical activities.

Further absurdities arise in the realm of law enforcement and healthcare. If a fetus has legal standing, every miscarriage could be subject to criminal investigation, treating women as suspects in potential cases of "fetal harm" or "negligence." This not only invades personal privacy but also imposes an immense psychological burden on women experiencing natural and often unavoidable pregnancy losses.

In addition, extreme fetal personhood laws could lead to bizarre legal entanglements, such as assigning social security numbers at conception or entitling fetuses to inheritance rights, complicating estate planning and financial responsibilities. The state's role in regulating pregnancy would expand to intrusive levels, possibly mandating lifestyle monitoring and interventionist policies that infringe on individual freedoms. Such extremities reveal the untenable nature of fetal personhood laws, highlighting the need for a balanced approach that respects women's rights and autonomy.

The legal issue of fetal personhood represents a complex and contentious debate that intersects deeply with issues of reproductive rights, women's autonomy, and governmental power. Fetal personhood is the concept that a fetus, from conception, possesses legal rights equivalent to those of a living person. This idea, if enshrined in law, has profound implications for the rights of the mother and the role of the government in private lives.

At the core of the fetal personhood debate is the potential reduction of rights for the mother. Historically, reproductive rights have centered on a woman's autonomy over her own body, notably affirmed in landmark rulings such as Roe v. Wade. The recognition of fetal personhood challenges this autonomy by potentially prioritizing the rights of the unborn over those of the pregnant woman. This shift could lead to significant legal and personal repercussions. For instance, if a fetus is granted personhood status, any decision a woman makes regarding her pregnancy could be subject to legal scrutiny. Actions perceived as harmful to the fetus, such as certain lifestyle choices or medical decisions, could be criminalized, thus restricting a woman's ability to make independent decisions about her health and life.

Moreover, the expansion of governmental power to protect the unborn would likely be substantial. Granting fetuses legal personhood would necessitate a robust framework to enforce and protect these rights. This could lead to increased governmental intervention in women's healthcare, including stricter regulations on abortion and potentially even monitoring of pregnant women's behaviors. The state could impose legal obligations on women to ensure the well-being of the fetus, effectively subjecting them to continuous surveillance and control. This level of governmental intrusion raises serious privacy concerns and challenges the principle of bodily autonomy that underpins many democratic societies.

The implications of fetal personhood extend beyond individual rights to broader societal and ethical considerations. It brings into question the balance between protecting potential life and preserving the rights of women.

This legal recognition could also disproportionately affect marginalized women, who may already face significant barriers to healthcare and social support. The increased legal and bureaucratic hurdles could exacerbate existing inequalities, making it even more difficult for these women to navigate their reproductive choices.


Grace E. Howard is an Associate Professor of Justice Studies at San José State University and is a Public Voices Fellow with the Op-Ed Project. Learn more at gracehoward.net.

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This interview will be recorded on Monday, June 24, 2024.

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David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi