Powerful change in the cultural perception of the fetus is strongly reflected in the changing status of the fetus under law. The U.S. Supreme Court’s pronouncement in Roe v. Wade that fetuses have never been considered “persons” under the Fourteenth Amendment notwithstanding, some courts and legislative bodies are increasingly recognizing fetuses as just that and thus in need of legal respect and protection by the state.
In Roe v. Wade the Supreme Court found that the fetus has never been considered a person under the Fourteenth Amendment and thus had no standing to challenge a woman’s right to an abortion. However, the Court also found that the state does have an interest in the potential life of the fetus that increases as pregnancy progresses toward birth. Therefore a woman’s right to privacy and thus to terminate her pregnancy is not absolute, but circumscribed by state interests that increase over the course of the pregnancy. The Court deliberately refused to decide when life begins, arguing that the judiciary is “not in a position to speculate as to the answer.” 410 U.S. at 159. However, it hinted that if the fetus was a person the relationship between the pregnant woman and the fetus would be profoundly affected. As the fetus metamorphizes toward cultural personhood, the final step is legal independence, which requires the conceptual separation of the fetus from the pregnant body of which it is a part. As this process unfolds, the Court’s words are proving to be strikingly prescient.
Despite its past invisibility, the fetus has been noted in various bodies of law for thousands of years. Early criminal and property laws acknowledged the possibility of harm to the fetuses of pregnant women. In the Bible, the Book of Exodus prescribes the appropriate punishment for injuring a pregnant woman or causing a miscarriage. Similar prohibitions on abortion and criminal sanctions for injury to a pregnant woman resulting in miscarriage have traditionally afforded recognition of fetal existence under law. But the notion of harm generally applied only to the property interests of a third party, like the father, or to the actual physical damage done to the pregnant woman, fetal interest was not at issue. However, as the personhood of the fetus gains cultural recognition, the traditional approach to recognizing fetal harm is giving way to one that recognizes independent status (Cardinale, Val, 1993).
The fetus first emerged as the subject of legal redress in property disputes over inheritance. As early as 1887 a child, born alive, was able to inherit from the estate of someone who died while he or she was still in utero. The point was to protect the property interests of fathers and testators after death, without acknowledging the fetus as having independent standing. Live birth was also a requirement in order to sue for injuries suffered in utero. A Massachusetts court held in Dietrich v. Northampton, that prenatal injuries were not recoverable, because no duty was owed to a person who did not exist. In this case the pregnancy miscarried in the fourth or fifth month following an accident in which the pregnant woman tripped on a flaw in the road; the fetus lived only a few minutes after birth. Justice Holmes reasoned that the fetus and the pregnant woman constitute one person; though a duty could be owed to her, no separate duty could be owed to the fetus.
Courts continued to deny tortious claims arising during pregnancy until 1946. In Bonbrest v. Kotz, 65 F. Supp 138 (1946) a cause of action for a fetus was recognized if the injury occurred after the point of viability and the fetus was later born alive. In 1960, a New Jersey court sustained the live birth requirement, arguing as earlier decisions had that otherwise injuries sustained in utero were not recoverable because the fetus was a part of the mother and thus had no independent status. The same court required that the defendant be a third party to avoid actions by minor children against their parents, supporting the notion of parent-child immunity.
Today, all states recognize standing for those injured in utero so long as the case meets the live birth and viability standards. But some states are beginning to abandon the viability standard. For example, a Georgia court ruled in 1956 that the developmental stage of the fetus at the time of injury was not important if the pregnancy resulted in a live birth. And in 1971 a Michigan court recognized the right of a person to sue for injuries sustained in a car accident as a four-month-old fetus. Challenges to the viability standard are ongoing in many states because a number of courts have reasoned that since it is difficult to determine the exact point of viability the standard itself is not sufficiently exact (Kantrowitz, & Quade, 1991).
Furthermore, a growing number of states now reject the requirement that the defendant must be a third party in order to ensure parent-child immunity. In the first case of this type, a woman was sued in 1980 by her child for having used the antibiotic tetracycline during pregnancy, which allegedly caused the child to have poor tooth enamel. The court ruled that the child had standing to sue based on neglect and abuse ruling that argued for a “reasonable pregnant woman” standard. And in 1987, an Illinois appellate court recognized the claims of an infant born alive to sue its mother for injuries suffered in an automobile accident when the child was a five-and-a-half-month-old fetus. Reaching a similar result, a New Hampshire court allowed a child born alive to sue its mother for injuries caused by negligence that occurred to the child while in utero. In this case, the woman was struck by a car during the seventh month of pregnancy. Her fetus, born by emergency cesarean section, suffered severe brain damage from the accident. The Bonte court relied on a 1958 case that held “a fetus becomes a separate organism from the time of conception” and that the pregnant woman “is required to act with the appropriate duty of care, as we have consistently held other persons are required to act, with respect to the fetus” (Oakley, 1993).
The erosion of the parent-child immunity standard marks a fundamental change in courts’ perceptions of the relationship between the pregnant woman and the fetus. Decisions like those in Bonte and the tetracycline case dramatically change the perceived responsibilities of the pregnant woman to the fetus. Even though laws are inconsistent, confused, and often contradictory across and sometimes within states, fetuses appear to be gaining autonomous standing in tort law and more protections from state courts. The unfolding story of the status of the fetus in criminal law is much the same.
The question most commonly posed under criminal law has been, Is the killing of a fetus homicide? Here too the live birth standard has been controlling. Unless the fetus is born alive, courts have held that most homicide statutes do not apply to the death of a fetus, reasoning that unborn fetuses are not “persons” and thus not entitled to state protection. This standard remains intact in many jurisdictions, but recently there has been encroachment on the live birth standard even in criminal law. For example, a Massachusetts court found in 1989 that a viable fetus is in fact a human being for the purpose of common law murder. And in 1990, a Minnesota court found that the state’s homicide statutes do not require that the living organism in the womb (whether an embryo or a fetus) be considered a person or human being and that the statute does not require the state to prove it to have been a “person” at the time of death.
The primary difficulty for criminal law has been to determine exactly what constitutes a “live birth.” Increasingly, judges find that the question of when a fetal birth is a live one becomes complicated by medical technologies that smudge the lines between born and uterine life (Pollitt, 1990).
In an attempt to clarify this question, some states have amended their statutes to specifically include fetuses within homicide and other laws in order to preclude the need for determining whether or not the fetus was alive at the time of injury. The California Penal Code, for example, defines murder as “the unlawful killing of a human being, or a fetus with malice aforethought.” At least twenty-one other states now impose some kind of criminal penalties for killing a fetus.
Laws like the amended California Penal Code allow for prosecution in cases where fetal death occurs, without applying the words “person” or “personhood” to fetuses. This linguistic contortion is necessary to circumvent Roe v. Wade, which held that a fetus is not a “person” under the Constitution. Courts and legislatures are often sympathetic to claims brought for fetal harm or death, interpreting and writing laws in such a way that courts can treat the fetus like a person without having to label it as such. In fetal personhood cases, some courts rely on legislative intent to determine whether fetuses should be included under homicide and manslaughter statutes. Where intent is unclear, many courts have invited the legislature to address the issue for subsequent cases. As one commentator observed, “Courts are loath to answer such questions” as when life begins.
The status of fetuses under criminal law is inconsistent, often contradictory, and changing daily across jurisdictions. Thus some legal scholars, right-to-life activists, and fetal rights advocates have joined with the judiciary in calling for legislatures to standardize the status of fetal personhood under law. Like the California legislature, many legislative and political bodies throughout the country are responding (Oakley, 1993).
Although many judges point to Roe as the controlling precedent on fetal personhood, others are more interested in the Supreme Court’s later decision to let stand — virtually without comment — the preamble to the Missouri antiabortion law contested in Webster v. Reproductive Health Services, which declared that “the life of each human being begins at conception.” Legal scholars may argue that documents like preambles and the Declaration of Independence have no power to set precedent, but also acknowledge that they have strong symbolic influence on the public consciousness. The fact that Missouri legislators declared that fetuses are persons with the Supreme Court’s imprimatur marks an important political shift.
Since the decision in Webster, antiabortion groups have been active at the state level, lobbying for so-called “human life amendments” and other legislation that officially recognizes the fetus in some capacity. Many states have passed or considered legislation that either defines the fetus as a person directly or indirectly through restrictions on access to abortion. For example, Illinois, Kentucky, Massachusetts, Oklahoma, and Missouri have defined the fetus as an “unborn child” upon either fertilization or conception (George, 1992). Other states, including Minnesota, New York, Ohio, and Wyoming, require burial of fetal remains in ways required for other persons under the law. At the federal level, pro-life forces have pushed for a national law defining fetuses as persons under the U.S. Constitution.
Seeing the fetus physically has rendered the pregnant body invisible. To the extent that one sees the fetus as an “individual” and a “member of society,” one must construct pregnancy as an inherently adversarial encounter between the pregnant woman and the fetus — rather than as a symbiotic creation. Supporting the “rights” of the fetus requires that we conceptually reduce pregnant women to nothing more than their wombs. According to Mary Kennedy, “Because of the integral role a mothers care of her body during pregnancy plays in fetal development, a woman’s right to control her body ought to be restricted for the welfare of her child once the decision has been made not to abort.” 128 In Kennedy’s view, the duty to care begins as soon as the pregnant woman knows she’s pregnant and decides not to terminate it.”
The model of pregnancy that views pregnant women as mere containers for little fetal people necessarily pits the pregnant woman against the fetus. In Overall’s words, “[T]he female body is seen as dangerous even to the embryo/fetus because the pregnant woman cannot be trusted not to abuse it, pass on defective genes to it, or even kill it, let alone to protect it from environmental harm and give birth to it safely”. But every person ever to live in this world was born to a woman who nurtured it with her body and who was also a person in her own right. This is what those who “see” the fetus as a person must exclude from their vision of pregnancy.
Petchesky and other feminist theorists argue that if we are to check the erosion of pregnant women’s rights and the ascension of fetal personhood, we must conceptually re-locate the fetus and again see it as part of the pregnant woman. To stop the ascension of fetal personhood we must metaphorically avoid looking at the sonogram. One wonders if that is possible rhetorically or, perhaps more important, whether it is likely politically. The persuasive power of medical images, antiabortion campaigns, and commercial interests will have an increasingly powerful influence on a culture as visually dependent as ours. Those fetal images will not be easily willed back into the bodies of pregnant women. Nor should they, because in fact fetuses do have value and material reality.
The problem lies not in the existence of the fetus but rather in how we look at pregnancy and in the meanings we construct for what we see. Pregnant bodies have been in our view since the dawn of history but we have not “seen” women (pregnant or not) as citizens and persons with equal rights until very recently. When courts compel pregnant women to undergo medical procedures or stop behaviors that may endanger their fetuses, they subordinate women’s rights to control their bodies and pregnancies and treat them as nothing more than fetal containers. This once again subordinates the social, political, and legal identity of women to their physical bodies. Except in this instance the pregnant woman is considered illegitimate even as a physical identity for she is a threat to her own fetus’s survival and health.
Medical, antiabortion, and commercial forces are currently making those choices for us. Their version of the fetus as a person can be had only through a construction of separation from the pregnant woman. Their understanding of the pregnant woman is of an “irrational” woman who is expressing her “latent antagonism” to her fetus. Women’s concerns for their religious beliefs, their fears of surgery, and the facts of their personal lives that drive them toward drug use during pregnancy are discounted as irrelevant.
But fetuses do not exist without pregnant women. The solution is not to stop looking, but rather to look more closely. Whereas fetal rights have many advocates who are pushing judicially and legislatively to expand and formalize fetal rights even more, there is little public advocacy for an expansion of “pregnancy rights.” Petchesky is right that we need to re-embed the fetus in the pregnant form. But that can only be done by “seeing” the pregnant woman as prominently in culture and in law as we now see the fetus inside. To do so is to legitimize, honor, and facilitate a woman’s decision to be pregnant. If we do that, perhaps we can begin to ascribe a value to the fetus that allows us to act on our protective impulses without impairing the rights of the pregnant woman.
B. J. George, Jr., 1992. “State Legislatures Versus the Supreme Court: Abortion Legislation in the iggos”, in Abortion, Medicine, and the Law ( 4th edition), ed. J. Douglas Butler and David E Walbert ( New York: Facts on File), 25.
Cardinale, Val, 1993. “New Technologies to Revolutionize the Health-Care Field”. Drug Topics, January 11.
Kantrowitz, Barbara and Vicki Quade, 1991. “The Pregnancy Police”. Newsweek, April 29.
Oakley, Ann, 1993. “Commentary: Whose Work Is It, Then?” Birth, 20(2).
Pollitt, Katha, 1990. “Fetal Rights: A New Assault on Feminism”. The Nation.
 See, for example, Beth Driscoll Osowski, “The Need for Logic and Consistency in Fetal Rights”, North Dakota Law Review 68 ( 1992); Richard A. Erb and Alan W. Mortensen, “Wyoming Fetal Rights — Why the Abortion ‘Albatross’ Is a Bird of a Different Color: The Case for Fetal-Federalism”. Land and Water Law Review 28( 2) ( 1993); Alan M. Dershowitz, Contrary to Popular Opinion ( New York: Pharos Books, 1992). For example, see the Book of Exodus, 22:21, 22-25. Apollo, “The Biological Father’s Right”, 201. Kennedy, “Maternal Liability”, 573. Overall, Ethics and Human Reproduction, 55.