Fetal Rights

The rights of any unborn human fetus, which is generally a developing human from roughly eight weeks after conception to birth.

Like other categories such as CIVIL RIGHTS and HUMAN RIGHTS, fetal rights embraces a complex variety of topics and issues involving a number of areas of the law, including criminal, employment, HEALTH CARE, and FAMILY LAW.

Historically, under both English COMMON LAW and U.S. law, the fetus has not been recognized as a person with full rights. Instead, legal rights have centered on the mother, with the fetus treated as a part of her. Nevertheless, U.S. law has in certain instances granted the fetus limited rights, particularly as medical science has made it increasingly possible to directly view, monitor, diagnose, and treat the fetus as a patient.

The term fetal rights came into wide usage following the landmark 1973 ABORTION case ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. In that case, the Supreme Court ruled that a woman has a constitutionally guaranteed unqualified right to abortion in the first

A doctor performs an ultrasound examination on a pregnant woman. The legal status of a fetus remains unclear. Although an unborn child does have some rights under the law, those rights sometimes conflict with the rights of the mother.
AMY ETRA/PHOTOEDIT

trimester of her pregnancy. She also has a right to terminate a pregnancy in the second trimester, although the state may limit that right when the procedure poses a health risk to the mother that is greater than the risk of carrying the fetus to term. In making its decision, the Court ruled that a fetus is not a person under the terms of the FOURTEENTH AMENDMENT to the U.S. Constitution. However, the Court also maintained that the state has an interest in protecting the life of a fetus after viability—that is, after the point at which the fetus is capable of living outside the womb. As a result, states were permitted to outlaw abortion in the third trimester of pregnancy except when the procedure is necessary to preserve the life of the mother.

Roe evoked impassioned responses from those who were morally or religiously opposed to abortion, and in the years following that case, abortion became one of the most contentious issues in U.S. law. Those opposed to the procedure became a powerful political lobby in the United States. Their efforts to promote the rights of unborn humans have had a significant effect on the law.

However, the cause of fetal rights has been greeted with suspicion by those who are concerned that the state may protect fetal rights at the expense of women's rights. For this reason, many feminists have been highly critical of claims regarding fetal rights. Such claims, they argue, can work to significantly diminish women's rights to self-determination and bodily autonomy.

At the same time, most legal experts recognize an increasing need to clarify the legal status of the fetus, particularly as technology has made it possible to regard the fetus as a patient independent of the mother. Some scholars have even gone so far as to ask that a model fetal rights act be passed so that states—which now exhibit a wide variety of approaches to fetal rights—may develop a more coherent legislative approach to the issue of fetal rights, one that will give courts more direction in deciding relevant cases.

The specific issues in which legal claims have been made regarding the rights of the fetus usually require a careful consideration of the sometimes competing rights of the woman and the fetus.