What's Wrong with Fetal Rights

A Look at Fetal Protection Statutes and Wrongful Death Actions on Behalf of Fetuses

No state interest described by fetal rights advocates has enough force to override a woman's fundamental rights of privacy, bodily integrity, and self-determination. . . . Until the child is brought forth from the woman's body, our relationship with it must be mediated by her.*

A pregnant woman and her fetus should never be regarded as separate, independent, and even adversarial, entities. Yet that is precisely what some anti-choice organizations, legal theorists, legislators, prosecutors, doctors, and courts have attempted to do in the past decade. They have tried to build support for the notion that the fetus has legal rights independent of the woman carrying it in her womb. Although this concept is sometimes put forward in very sympathetic contexts, it is laced with risks for women's rights. Theories of "fetal rights" have been promoted through different approaches in both legislation and litigation. Below, we will examine the threat to the constitutional right of reproductive choice inherent in two of these approaches: fetal protection statutes and wrongful death actions on behalf of fetuses. 

* Janet Gallagher, Prenatal Invasions & Interventions: What's Wrong with Fetal Rights, 10 Harvard Women's Law Journal 9, 37, 57 (1987).

In the past two years, a number of states have considered or enacted legislation designed to protect fetuses and punish individuals who injure them or cause their death. The ACLU recognizes that a woman may suffer a serious physical and emotional injury if her pregnancy is ended by an assault, a drunk driving accident, or other criminal or negligent acts. But we have serious reservations about legislation designed to protect fetuses, because it can endanger women's rights by reinforcing claims of "fetal rights" in the law. 

Anti-choice organizations have long promoted fetal protection legislation as one prong of their campaign to eliminate the right to choose. It is no accident that anti-choice groups like Americans United for Life have drafted and circulated such legislation all over the country. Passage of fetal protection laws gives anti-choice forces a propaganda coup and a launching pad for arguments to restrict abortion. In a 1984 presidential election debate, Ronald Reagan cited a California "feticide" law as support for regarding abortion as murder, asking, "Isn't it strange that that same woman could have taken the life of her unborn child and it was abortion, not murder, but if somebody else does it, that's murder?"

The ACLU fully supports a woman's right to obtain redress under civil law for an injury to her fetus, and we support society's right to punish criminal conduct. But we urge legislators and advocates of choice to take a careful look at bills designed to protect fetuses. They must be alert to the pitfalls in such bills and refrain from supporting statutes that endanger civil liberties.

A. The Varieties of Fetal Protection Legislation 

Legislation to protect fetuses can take many different forms. The extent to which such a bill may endanger reproductive rights depends on its specific terms and implications. For example, states may: 1) amend existing homicide statutes to include the fetus as a possible victim; 2) pass statutes defining the fetus as a person or human being, thereby making the fetus fall within the compass of other statutes applicable to all persons or human beings; 3) enact freestanding statutes to define and penalize a new crime of injury to a fetus, fetal homicide, or "feticide"; 4) extend wrongful death statutes to permit civil suits against individuals who cause the death of a fetus; or 5) enact new statutes to penalize injury to a pregnant woman that causes her fetus to die or be injured. In some instances, two or more of these approaches to fetal protection may be combined in a single bill.

B. Fetal Protection Legislation Can Infringe on the Right to Abortion

To conform with the constitutional right to choose established in Roe v. Wade, fetal protection legislation must exempt abortion from punishment. The exemption should explicitly cover: 1) abortions performed by health care workers with the consent of the woman or in medical emergencies; and 2) self-abortions. 

An exemption specifying "legal abortions" is not adequate, because a narrow interpretation of what constitutes a "legal" abortion could restrict the performance of abortions to physicians only, and put mid-level health care practitioners, or women who self-abort, in jeopardy of being prosecuted for murder. Prosecutions for self-abortion occur even in the absence of fetal protection laws and provide cruel examples of what might result from such legislation. In the past three years alone, women in Florida, Tennessee, and Illinois faced criminal charges after desperate attempts at aborting themselves. In State v. Ashley, Florida authorities are pursuing a manslaughter charge against a 19-year-old single mother who shot herself in the stomach after learning she could not obtain Medicaid funds for an abortion. 

Fetal protection legislation lacking an adequate exemption for abortion could make all abortions in a state illegal if Roe v. Wade were later overturned or undermined. Even when fetal protection statutes do have such exemptions, zealous anti-choice prosecutors may try to intimidate abortion providers by threatening to use the statutes as grounds to indict them for murder if there are any deviations from strict abortion laws or regulations. 

C. Fetal Protection Statutes May Encourage the "Policing" of Pregnancy

Fetal protection bills must also exempt conduct of the pregnant woman herself. If they do not, they will encourage the "policing" of pregnancy by those attempting to control the conduct of pregnant women. Over the last twenty years, we've seen numerous women subjected to prosecution or civil lawsuits for engaging in (both legal and illegal) conduct that is potentially harmful to a fetus. If fetal protection laws without adequate exceptions are adopted, state or local officials might feel licensed to prosecute a woman who smokes or drinks alcohol during pregnancy and subsequently miscarries or bears a stillborn fetus, or perhaps even a live baby in need of special medical attention. And women might be sued for "prenatal negligence" by their own children, as happened in Grodin v. Grodin, a 1980 case from Michigan in which a court held that a child could sue his mother for having taken tetracycline during pregnancy, allegedly resulting in discoloration of the child's teeth. 

We could also expect to see still more criminal prosecutions or child abuse or neglect proceedings brought against women who make childbirth choices of which doctors or judges disapprove. In 1982, Kentucky officials charged a lay midwife and her clients with reckless homicide in the death of a fetus during a home birth. And just this year, a Wisconsin judge ordered the detention of a woman who had disclosed her intention of giving birth at home over a doctor's objection. Such prosecutions and lawsuits for prenatal negligence infringe upon women's constitutional rights to privacy, equal protection, and due process. They treat pregnant women differently simply because they are pregnant, subjecting them to standards that do not apply to anyone else.

D. Fetal Protection Bills May Violate Other Constitutional Rights

Some fetal protection bills disregard the Constitution's promise that citizens are entitled to due process of law. They violate due process guarantees if they lack a scienter requirement or are unacceptably vague. A scienter requirement specifies that the perpetrator of a crime must have intended to commit the crime. Such a requirement is usually necessary for a person to be convicted of an offense in criminal law. When legislation fails to address intent, as some fetal protection bills do, a person may be prosecuted and punished for a crime that he or she did not intend to commit, when a lesser charge would be more just. 

Fetal protection bills also run the risk of being unconstitutionally vague if they do not define all of their terms and spell out precisely what conduct is prohibited. A fetal protection statute that leaves the public, health care workers, and law enforcement authorities uncertain as to its meaning is especially dangerous because it threatens to chill the exercise of constitutionally protected reproductive rights.

E. Factors to Evaluate

Fetal protection bills must be analyzed very carefully. Serious thought should be given to the bills' possible uses and ramifications. We urge you to consult with the ACLU Reproductive Freedom Project about any fetal protection bills introduced in your legislature. Here is a checklist of some important factors that you should evaluate in the bills and discuss with us:

• Does the bill cast the fetus, the woman, or both as the victim? Bills that cast the woman alone as the injured party are less likely to be read by the courts as vesting the fetus with rights independent of the woman or giving a born child rights to sue its mother.

• Does the bill have an exemption for abortions performed by health care workers with the consent of the woman or in medical emergencies, as well as an exemption for self-abortions? Bills that lack such exemptions undermine reproductive choice. 

• Does the bill exempt conduct of the pregnant woman herself? Failure to exempt the pregnant woman's conduct will encourage the "policing" of pregnancy and infringe upon all pregnant women's constitutional rights to privacy, equal protection, and due process.

• What language does the bill employ to describe the fetus? Insist that it be free of anti-choice rhetoric, such as "pre-born," "unborn baby," "unborn child," or "unborn human." 

• Does the bill create criminal or civil liability? A criminal law that will deprive a defendant of his or her liberty has greater constitutional implications than does a law creating a right to file a civil lawsuit for money damages. 

• Does a bill proposing a criminal penalty include a scienter requirement? The legislation must contain a requirement of knowledge or intent to commit the crime in order to comply with the due process guarantee of the Constitution. 

• Does the bill define all of its terms and spell out precisely what conduct is prohibited? A bill will not comply with the constitutional guarantee of due process if it is so vaguely written that it leaves the public, health care workers, and law enforcement authorities unsure of its meaning and reach.

• In a bill proposing a criminal penalty for causing the death of a fetus, how does that penalty compare to the penalty for causing the death of a live person? The penalty for killing a fetus should not be as severe as the penalty for killing a person. 

F. The Need for Sensitive Advocacy Concerning Fetal Protection Bills 

The ACLU Reproductive Freedom Project recommends extreme caution about fetal protection bills because of the potential dangers for reproductive rights. We urge supporters of civil liberties to be sensitive about evaluating proposed bills on three different levels: 1) legal; 2) political; and 3) rhetorical. By "legal," we mean that they must determine whether or not the proposed legislation will infringe on individual rights. By "political," we mean that they must be aware what group, individual, or impetus is behind the legislation. And by "rhetorical," we mean that they must take care when they discuss or criticize fetal protection bills; our language should reflect understanding of why many people, including some who are pro-choice, might support fetal protection legislation. While we need to make clear that we respect and sympathize with the many emotional dimensions of this issue, every effort must be made to ensure that fetal protection statutes will not pave the way for government actions that threaten women's rights or reproductive choice. 

Many states have "wrongful death" statutes, which allow someone acting on behalf of a deceased person -- usually a surviving relative or an administrator of the estate -- to recover damages for a wrongful or negligent act that caused the person's death. The state courts are divided on whether or not stillborn fetuses may be regarded as "persons" for the purpose of bringing wrongful death actions on their behalf. The ACLU takes the position that when a prospective parent's plans to continue a pregnancy to term have beenfrustrated by others, that individual should be compensated for the loss of the pregnancy and the harm suffered. The prospective parent should bring a cause of action and be compensated under tort law, the area of the law concerned with compelling wrongdoers to compensate those whom they have injured. We do not, however, believe that legal action should be brought by a parent or other party on behalf of a stillborn fetus, either under a wrongful death statute or under tort law generally. 

Legal claims made on behalf of stillborn fetuses risk intruding upon women's constitutionally protected privacy rights. A recent Florida case in which we participated, Young v. St. Vincent's Medical Center, demonstrates the important issues at stake when a wrongful death action is brought on behalf of a fetus. In April 1995, the Florida District Court of Appeals asked the Florida Supreme Court to decide whether a stillborn fetus has a right of recovery under Florida's Wrongful Death Act. This question arose because a woman had brought a wrongful death action on behalf of her stillborn fetus to seek damages for a hospital's alleged negligence. The state court of appeals, as well as the district court, dismissed the plaintiff's claim on the ground that Florida law permits a cause of action for wrongful death only for those born alive. 

The ACLU Reproductive Freedom Project and the ACLU of Florida filed a friend-of-the-court brief urging the Florida Supreme Court to continue to limit wrongful death actions to those born alive. In earlier cases, the court had consistently held that a stillborn fetus -- who was not born alive -- could not be considered a "person" with the right to bring legal action. We argued that any recognition of a cause of action on behalf of the stillborn fetus, if understood to separate the interests of the fetus from those of the woman carrying it, could needlessly compromise a pregnant woman's right of reproductive choice.

The central question posed by Young v. St. Vincent's Medical Center was not whether the prospective parent's loss should be compensated, but rather, how it should be compensated. The Project and the ACLU of Florida urged that any money damages should go to the prospective parent, who should be compensated for the loss of her child and the harm she suffered when her choice to continue a pregnancy to term was frustrated. The understandable impulse to compensate the loss of a fetus, we argued, should not lead to an award of damages to the stillborn fetus. Instead, the prospective parent's loss could and should be compensated within the existing tort law framework, which recognizes a unified legal interest between the pregnant woman and her fetus. 

Moreover, the ACLU brief argued that according independent legal rights to fetuses opens the door to causes of action against pregnant women in violation of their autonomy and privacy. Any equating of a fetus with a "person" or "child" in the wrongful death context would have ramifications in other realms of the law. It might, for example, spur claims for "prenatal negligence" by children suing their own mothers, like Grodin v. Grodin, the Michigan case mentioned earlier in which a child alleged that his mother's conduct during pregnancy had discolored his teeth. Recognition of independent "fetal rights" would encourage prosecutors and medical personnel to punish women for drug use duringpregnancy or other conduct that could potentially harm a fetus. As the brief states, 

[G]ranting a fetus autonomous legal rights would subject virtually all of a pregnant woman's actions to monitoring, questioning, and judgment, laying a foundation for civil liability and even punitive government action against the woman. . . . [T]he impulse to hold a pregnant woman accountable for any and all decisions that may, in some unforeseen manner, affect her fetus, could only lead to an arbitrary legal standard by which to assess the propriety of her actions. The woman's privacy and autonomy would thus be drastically reduced. Any development of "fetal rights" as a legal doctrine would undoubtedly intensify efforts by legal and medical authorities to "police" pregnancy.

Recognition of a cause of action (or right to sue) for a fetus could also result in scrutiny of and interference with a pregnant woman's medical choices. Doctors who disapproved of women's decisions to give birth at home or refuse cesarean sections might feel justified in seeking court orders to compel the women to act according to the doctors' advice. The ACLU has on many occasions successfully opposed such court orders or had them reversed, including the shocking case, In re A.C. (1990), in which a hospital hastened the death of a woman stricken with cancer by forcing her to undergo an unwanted cesarean section. Although a number of courts have now ruled against coerced cesarean sections, acceptance of the notion of "fetal rights" could encourage doctors to seek court orders to compel women to undergo this invasive surgery, in violation of the women's rights to privacy, bodily integrity, and due process. 

On March 14, 1996, the Florida Supreme Court upheld the lower court's decision in Young v. St. Vincent's Medical Center and dismissed the wrongful death claim on behalf of the fetus. This decision followed a related victory in Peters v. Hospital Authority of Elbert County, where the Georgia Supreme Court agreed with our friend-of-the-court brief arguing that only a prospective parent, and not a stillborn fetus, should be permitted to seek recovery in a tort action. 

While acknowledging the deep emotions that fetuses may evoke for millions of Americans, the ACLU opposes the creation of theories of "fetal rights." Permitting legal actions on behalf of stillborn fetuses or enacting laws to protect fetuses opens a Pandora's box in terms of how the law treats pregnancy and childbirth. However great our compassion and concern for bereaved prospective parents, we must examine such lawsuits and legislation with a critical eye. If they pose a real threat to reproductive rights, as they often do, then we must intervene and oppose them.