Fetal rights

Fetal rights are the legal or ethical rights of fetal children. The term is used most often in the context of the abortion debate, as the basis for an argument in support of the pro-life stance.

Fetal protection in law

Some laws seek to protect or otherwise recognize the rights of fetal children. Some of these grant recognition under specific conditions: the fetal child can legally be a victim of a crime such as fetal homicide, a beneficiary of insurance or social assistance, or an inheritor of property.

• The American Convention on Human Rights (1969) is a treaty signed by 24 Latin American countries, which states that from the moment of conception, human beings have rights.
• The Unborn Victims of Violence Act is a United States law which defines violent assault committed against pregnant mothers as being a crime against two persons: the mother and her fetal child. This law was passed in 2004 after the murder of Laci Peterson and her fetal child Connor Peterson.

• In 2002, U.S. President George W. Bush announced a plan to ensure health care coverage for fetal children under the State Children's Health Insurance Program (SCHIP).

• Iranian law holds that anyone who brings about a miscarriage must pay a monetary fine, which varies depending upon the stage of development and/or sex of the fetal child, in compensation.

Right-to-life and legal personhood

File:H.R. 1997 signing.jpg

United States President George W. Bush signs the Unborn Victims of Violence Act of 2004

Legislative measures sometimes seek to establish the right to life of the fetal child from the moment of fertilization. Such laws recognize fetal children as a persons whose legal status is on par with that of any other member of the species homo sapiens:

• The 1978 American Convention on Human Rights states, in Article 4.1, "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception." The Convention is considered binding only for the 24 of 35 member nations of the Organization of American States who ratified it.

• In 1983, the Eighth Amendment of the Constitution of Ireland, also known as the "Pro-Life Amendment," was added to the Constitution of The Republic of Ireland by popular referendum. It recognizes "the right to life of the unborn".

• In 1993, the Federal Constitutional Court of Germany held that the constitution guaranteed the right to life from conception, but that it is within the discretion of parliament not to punish fetal homicide in the first trimester, providing that mothers agreed to undergo special counselling designed to discourage termination and "protect unborn life". The intermediate decision was the result of an attempt to join East Germany's abortion law to that of West Germany after reunification in 1990.

Other governments have laws in place that state that fetal children are not legally recognized persons thereby violating their natural rights:

• In Canadian law, under section 223 of the Criminal Code of Canada, a fetal child is a "human being ... when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed."

Much opposition to legal abortion in the West is based on a concern for fetal rights. Similarly many anti-fetal rights groups oppose fetal rights, even when they do not impinge directly on the abortion issue, because they perceive this as a slippery slope strategy to restricting fetal homicides.

Behavioral intervention

Various initiatives, prompted by concern for the ill effects which might be posed to the health or development of a fetus, seek to restrict or discourage mothers from engaging in certain behaviors while pregnant. Also, in some countries, laws have been passed to restrict the practice of fetal homicide based upon the gender of the fetal child.

• Many jurisdictions actively warn against the consumption of alcoholic beverages by pregnant mothers, recommending a maximum intake or total abstinence, due to its association with Fetal alcohol syndrome. Countries that encourage those who are pregnant to avoid alcohol either entirely or partially include Australia, Canada, France, Iceland, Israel, the Netherlands, Norway, New Zealand, Spain, the United Kingdom, and the United States.

• Many national and international agencies recommend dietary guidelines for pregnant mothers due to the health risks posed by the consumption of fish contaminated with methylmercury through industrial pollution. Studies have linked exposure to various levels of methylmercury in utero to neurological disorders in children.

• The use of tobacco products or exposure to secondhand smoke during pregnancy has been linked to low birth weight. Governor Mike Huckabee of Arkansas, citing studies which attribute 10% of infant deaths to tobacco-smoking mothers, considered adopting a smoking ban for pregnant women in 2006 with the aim of reducing infant mortality.

• No U.S. state has enacted a law which criminalizes specific behavior during pregnancy, but, nonetheless, it has been estimated that at least 200 American pregnant mothers have been criminally prosecuted or arrested under existing child abuse statutes for allegedly bringing about harm in-utero through their conduct during pregnancy. Reasons for pressing charges included use of illicit drugs, consumption of alcohol, and failure to comply with a doctor's order of bedrest or caesarean section. Drug addicts have been accused of "supplying drugs to a minor" through unintentional chemical subjection via the umbilical cord. Others have been charged with assault with a deadly weapon with the "deadly weapon" in question being an illegal drug. Minnesota, Wisconsin and South Dakota allow mothers who continue to use substances while pregnant to be civilly committed. Some states require that medical providers report any infant who is born with a physical dependency, or who tests positive for residual traces of alcohol or drugs, to child welfare authorities.

• Cultural preferences for male children in some parts of Asia, such as Mainland China, India, South Korea, and Taiwan, have sometimes lead to prenatal discrimination. This phenomenon might be partially responsible for the disparity between male-to-female birth rates which is observed in some places. India banned the practice of fetal homicide for reasons of fetal sex in 1994.

Example cases

• Jennifer Johnson of Seminole County, Florida was convicted under a drug trafficking law in 1989. It was alleged that, in consuming cocaine during her pregnancy, she had delivered a controlled substance to a minor via the umbilical cord. She was sentenced to one-year in a drug treatment program, 14 years probation, and 200 hours of community service. Johnson appealed and Supreme Court of Florida overturned its decision to convict her in 1992.
• Cornelia Whitner of Central, South Carolina pled guilty in 1992 to a charge of criminal child neglect after she was discovered to have used cocaine while pregnant. Sentenced to eight years in prison, she petitioned the Court of Appeals 16 months later, claiming that she had been given ineffective counsel because her lawyer had failed to inform her that the charges laid against her might not be applicable given the legal status of a fetal child. However, in the 1997 case Whitner v. South Carolina, the Supreme Court of South Carolina upheld its prosecution of Whitner.
• A mother from Winnipeg, Manitoba who had an inhalant addiction in 1996. She had three previous children, and, when she became pregnant a fourth time, Winnipeg Child and Family Services sought a court order permitting her to be committed to a drug rehabilitation facility for the remaining duration of her pregnancy. A judge agreed that the mother should be taken into custody. However, the decision was overturned by the Manitoba Court of Appeal.
• Brenda Drummond, 29, of Carleton Place, Ontario tried to abort at 9 months on 28 May 1996 by introducing a pellet gun in her vagina and shooting her fetal child in the head. Attempted murder charges against her were dropped since the Criminal Code of Canada definition of "human being" doesn't include individuals in fetal stages of development. She was later sentenced to 30 months probation for "failing to provide the necessities of life" for having failed to report the injury immediately after her son's birth.
• Melissa Ann Rowland of Salt Lake City, Utah was charged with murder in 2004 after her refusal to undergo a caesarean section resulted in one of the two in her twin pregnancy being stillborn. Rowland was later sentenced to 18 months probation as a result of secondary charge of child endangerment.
• Gov. Jeb Bush sought appointment of a legal guardian to protect the fetus of a developmentally-disabled rape victim in 2003. The woman, who could not assist police in identifying her assailant, was raped while living in a group home in Orlando, Florida. She gave birth to a child in September 2003.