The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection

Abstract

This decision is a social one, not dictated by biology. A scientific inquiry reveals only that the fetus is a living entity, as are the egg and the sperm that combine to form the fetus, which has the potential to develop into a recognizable person given approximately nine months of nurturing in the woman's womb. The legal status that society chooses to confer upon the fetus is dependent upon the goals being pursued and the effect of such status on competing values. In the course of defining the word "alive," Professor Arthur Leff offered an insightful and concise discussion of the relevant considerations in determining under what circumstances the fetus should be considered a legal person: Important to all these legal problems is the recognition that they are legal (and ethical) problems, dependent not on any deceptively 'natural' biological definition of life, but on social and legal decisions. In 'nature,' things just are; only people classify.. . .[Tihe relevant legal question ought not to be whether a foetus is 'alive' or 'a person' from the moment of conception, or the moment of viability, etc., as if the question were one of natural rather than social decision. A legal decision will still have to be made to whom the law ought to give protection and at what cost, paid by who[m]. . ..

Court‐Authorised Caesarean Sections — The End of a Trend?

“…If the foetus were awarded interests other than the interest not to be intentionally destroyed if none of the exceptions of the relevant Acts apply, and if those interests could prevail over those of the pregnant woman, it would follow that the state could control the life of pregnant women in the name of the protection of the foetus. 50 Instead of respecting the pregnant woman's autonomy, such a concept turns the woman into a means for a third party's, the foetus', ends, thereby undermining not only the pregnant woman's autonomy, but also her human dignity. If women could be forced to have Caesarean sections in the name of the protection of the foetus, it would also follow that the interests of the foetus would be of higher value than those of the pregnant woman, a concept that is difficult to justify.…”

Qualifying choice: ethical reflection on the scope of prenatal screening

“…These objections are associated with fetal rights, feminist, and disability rights perspectives (de Jong and de Wert 2015; Johnsen 1986; Parens and Asch 2003; Wertz and Fletcher 1993). From the fetal rights perspectives, the life of the unborn fetus is considered sacred.…”

“…From a feminist perspective, any offer of prenatal screening for reproductive choice where preferred reproductive choices are recommended by the health service provider may threaten women’s reproductive rights and freedoms (Johnsen 1986). Reproductive decision making, especially when concerning abortion, should remain a voluntary and highly personal practice that reflects the biological role that women play during reproduction and takes into account the way that women experience pregnancy (Dondorp et al 2015; Lippman 1991; HCN 2008; Rothman 1986; Wertz and Fletcher 1993).…”

A property model of pregnancy

“…In America, many commentators are increasingly concerned about the willingness of state authorities to impose treatment upon pregnant women against their will, 'for the benefit' of the foetus (see, for example, Johnsen, 1986;Daniels, 1993;Morgan and Michaels, 1999;Roth, 2000). New technology has enabled clinicians to have a greater understanding of foetal development and has given them the ability to intervene more and more for the clinical benefit of the foetus.…”