Fetal Rights

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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

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.

Forced Cesarean Sections

Because of improvements in fetal monitoring and surgical techniques, physicians increasingly recommend that women give birth by cesarean section, a surgical technique that involves removing the fetus through an incision in the woman's abdomen. In many cases, cesarean section improves the chance that the fetus will be delivered safely. By 1990, cesarean sections accounted for almost 23 percent of U.S. childbirths.

Some women choose not to undergo a physician-recommended cesarean section. They may do so for a variety of reasons, including a concern about their own risk of harm, including death, from the surgery; a desire to avoid repeated cesarean sections; or sincere religious, cultural, or moral beliefs. This situation has led to a number of legal questions, such as should a woman be forced to undergo a cesarean section or other surgery in the interest of the health of the fetus? To what extent is a woman obligated to follow the advice of her physician regarding the medical care of her fetus?

The 1980s saw an increasing number of cases in which hospitals and physicians sought court orders to force women to give birth by cesarean section. From 1981 to 1986, fifteen such cases were reported, and in thirteen of them, courts decided to require cesarean section. In a 1981 case, Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457, the Georgia Supreme Court held that an expectant mother in her last weeks of pregnancy did not have the right to refuse surgery or other medical treatment if the life of the unborn child was at stake. As has happened in a number of other instances, the pregnant woman named in the case avoided the procedure and later delivered a healthy child by natural birth.

Later court decisions, however, increasingly recognized a pregnant woman's right to refuse medical treatment. In a 1990 case, In re A. C., 573 A.2d 1235, the District of Columbia Court of Appeals ruled that a physician must honor the wishes of a competent woman regarding a cesarean section. The court's opinion was written after the woman involved in the case, Angela Carder, and her fetus died following a cesarean section forced by a lower court.

A 1994 Illinois case, Doe v. Doe, 260 Ill. App. 3d 392, 198 Ill. Dec. 267, 632 N.E.2d 326, involved a woman (called Doe to protect her anonymity) who was thirty-five weeks pregnant. Her doctor conducted tests that indicated her fetus was not receiving adequate oxygen. He therefore recommended that the fetus be delivered by cesarean section. Doe objected to the surgical procedure on the basis of her religious beliefs. The doctor and his hospital then contacted the Cook County state's attorney, who petitioned for a court order requiring the woman to undergo the cesarean procedure.

The case eventually reached the Illinois Appellate Court, which upheld Doe's right to refuse the cesarean section. The court held that a physician must recognize a woman's right to refuse a cesarean section. It found no statute or Illinois case to support the state's request to force a cesarean on a competent person. It also dismissed the state's argument that Roe's protections of a viable fetus authorized a forced cesarean.

The court also noted the position of the american medical association (AMA) on the issue. The AMA has reminded physicians that their duty is to ensure that a pregnant woman is provided with the necessary and appropriate information to enable her to make an informed decision about her fetus and that that duty does not extend to attempting to influence her decision or attempting to force a recommended procedure upon her. The court assessed the action of the physicians in the Doecase to be in direct opposition to the AMA's clear edict.

Shortly after the court's decision, Doe gave birth to a healthy baby boy. The Supreme Court later declined to review the case. New types of fetal surgery now made possible by medical science promise to raise questions very similar to those found with forced cesarean sections.

Drug Use by the Mother

The use of illegal drugs such as cocaine and heroin can have a devastating effect on the health of a fetus. By the early 1990s, it was estimated that 375,000 children were born annually in the United States suffering from the effects of illegal drugs taken by their mother.

As a result, some states have held women criminally liable for any use of illegal drugs that harms their fetus. Prosecutors in many states have sought to deter such behavior by charging women with a number of crimes against their fetus, including delivery of drugs, criminal child abuse, assault with a deadly weapon, and manslaughter. Johnson v. State, 578 So. 2d 419 (Fla. 1991), demonstrates the controversial aspects of such prosecutions. In this case, a Florida district court of appeal upheld a lower court's conviction of a woman for the delivery of a controlled substance by umbilical cord to two of her four children. The decision was the first appellate ruling to uphold such a conviction.

Jennifer Johnson, a twenty-three-year-old resident of Seminole County, Florida, had been arrested in 1989 after two successive instances in which a child born to her tested positive for cocaine immediately after birth. Cocaine is especially harmful to a fetus, often causing premature birth, significant deformities and ailments, and even death. After Johnson's conviction in the Seminole County Circuit Court in 1989, the american civil liberties union (ACLU) appealed the case with backing from an unusual alliance of medical and civil rights organizations, including the AMA, the American Public Health Association, the Florida Medical Association, and the National Abortion Rights Action League, all of which had different reasons for supporting the appeal.

The AMA stated that it opposed the use of criminal prosecutions against mothers. Imposing criminal sanctions, it said, does not prevent damage to fetal health and may violate the privacy laws between doctors and women, making doctors and hospitals agents of prosecution. The ACLU echoed the AMA, arguing that prosecutions of drug-addicted women for harm to their children will greatly damage women's health, their relationship to the healthcare community, and their ability to control their own body. It also maintained that the policies enacted against Johnson should be made by a state legislature

and not the courts, and it pointed out that many more minority women than white women are reported for child abuse after testing positive for drugs.

Other critics argued that most child abuse statutes do not specifically mention drug use by pregnant women as an offense, thereby raising the question as to whether prosecutions on charges of drug use involve a denial of due process. Still others said that increased funding for substance abuse treatment programs was a much better approach to the drug problem. They saw prosecutions on drug abuse charges as doing little to treat the underlying addiction and argued that such prosecutions deter at-risk women from seeking prenatal care, increasing the likelihood of harm to the fetus.

Despite these arguments, the Fifth District Court of Appeals, in Florida, upheld Johnson's conviction. It agreed with the prosecution's argument that Johnson's umbilical cord had delivered cocaine to her children after their birth but before the cord was cut, thereby violating a Florida statute against the delivery of a controlled substance to a minor (Fla. Stat. Ann. §893.13(1)(c) [West 1991]).

States will continue to struggle with this issue as they seek to achieve the best balance between maternal and fetal rights. States will also have to consider whether or not to hold criminally liable women whose use of legal substances such as alcohol or tobacco harms the fetus.

Fetal Protection Policies

Fetal protection policies bar fertile women from specific jobs out of fear that those jobs may cause harm to any embryos or fetuses the women might be carrying. These policies came into widespread use by many companies during the 1970s and 1980s, before a 1991 U.S. Supreme Court decision, UAW v. Johnson Controls, 499U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, declared them a form of sexual discrimination that violates Title VII of the civil rights act of 1964 (42 U.S.C.A. § 2000e et seq. [1982]). Despite the Court's decision in Johnson Controls, those critical of fetal protection policies feared that the policies would be continued in more subtle forms.

Willow Island, West Virginia, Women Paid the Price of Fetal Protection Policies

The 1991 U.S. Supreme Court ruling that declared fetal protection policies to be a violation of civil rights laws came too late for five women from West Virginia who were forced by their employer to choose between undergoing a sterilization procedure to avoid health risks associated with their higher paying jobs, remaining fertile but moving to lower paying jobs, or quitting their jobs altogether (International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 [1991]). The women worked at an American Cyanamid factory in Willow Island, a poor region where decent-paying jobs were scarce. They were all among the first women to work in these factories, which, before 1974, had employed only men.

In 1978 the company introduced a policy that no fertile women would be allowed to work in its lead pigments department. The company claimed that hazardous chemicals in that department might harm women's reproductive system. Fertile women under age 50 would have to be sterilized or take jobs in other areas of the company, virtually all of which paid less. Men, whose reproductive system might also be damaged by lead, were not subject to restrictions.

The seven women then employed in the lead pigments department found themselves facing an agonizing choice: whether to reduce or sacrifice their income or undergo a surgical procedure that would render them unable to bear children. Five of the women chose sterilization.

The labor union to which the women belonged eventually took the women's case to court, claiming that the company's fetal protection policy represented a violation of federal occupational safety standards because it required an individual to be sterilized in order to be eligible for work. The union lost the case in the federal appeals court (Oil, Chemical, & Atomic Workers International Union v. American Cyanamid Co., 741 F.2d 444 [D.C. Cir. 1984]). However in the 1991 Supreme Court ruling, this decision was reversed.


Abortion; Civil Rights Acts; Women's Rights.

Johnson Controls grew out of a fetal protection policy created in 1982 by Johnson Controls, an automobile battery manufacturer. The company's policy excluded pregnant women and women capable of bearing children from battery manufacturing jobs. The company maintained that the jobs in its manufacturing plant exposed women to levels of lead that might harm any embryo or fetus they might be carrying.

In 1984, a group of Johnson Controls employees, together with their labor union, the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), filed a class action suit in federal court challenging the company's policy. They charged that the policy constituted sex discrimination in violation of federal civil rights law.

In the final ruling on the case, the U.S. Supreme Court held that fetal protection policies unfairly discriminate against women because they do not demand that men make a similar choice regarding the preservation of their reproductive health in a potentially hazardous workplace.

Companies that have created fetal protection policies argue that they are necessary to protect their employees. Critics of fetal protection policies maintain that they effectively exclude all women aged 15 to 50 from well-paying jobs unless the women can prove they have been sterilized. They also contend that such policies raise privacy questions because they often require women to provide proof that they cannot have children in order to take specific jobs. Critics also point to instances in which women have undergone sterilization procedures because they faced the loss of high-paying jobs. Other critics argue that male reproductive organs may also be affected by hazardous substances in such a way that a fetus might be harmed. Nevertheless, no company has created similar policies for men.

fourth amendment search and seizure cases can also touch on fetal rights. In Fergusonv. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d. 205 (2001), the Supreme Court ruled on a case concerning nonconsensual drug testing of pregnant women. In Ferguson the state argued that the drug testing was performed as a measure to help protect unborn fetuses and that these searches fell under the "special needs" exception to the Fourth Amendment. Cases recognizing the exception have employed a balancing test weighing the harm caused by the warrantless intrusion on the individual's privacy interest against the "special needs" that supported the intrusion. The court held that the South Carolina state hospital's drug testing of pregnant patients to obtain evidence for law enforcement purposes does in fact violate the Fourth Amendment. The majority rejected the state's argument that testing fell within the "special needs" exception to the Fourth Amendment. The court said the state's interest in using the threat of criminal sanctions to deter pregnant women from using drugs does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. The court further held that the drug tests, conducted by the Medical University of South Carolina, constituted an unreasonable search if the patient had not consented to the procedure.

further readings

Bates, Kelly F. 1995. "Cesarean Section Epidemic: Defining the Problem, Approaching Solutions." Boston University Public Interest Law Journal 4.

Blank, Robert H. 1992. Mother and Fetus: Changing Notions of Maternal Responsibility. Westport, Conn.: Greenwood Press.

Condoll, Blair D. 1994. "Extending Constitutional Protection to the Viable Fetus: A Woman's Right to Privacy." Southern University Law Review 22 (fall).

Faludi, Susan. 1991. Backlash: The Undeclared War on American Women. New York: Crown.

Samuels, Suzanne Uttaro. 1995. Fetal Rights, Women's Rights: Gender Equality in the Workplace. Univ. of Wisconsin Press.

Wellman, Carl. 2002. "The Concept of Fetal Rights." Law and Philosophy 21 (January).


Child Abuse; Drugs and Narcotics; Fetal Tissue Research; Parent and Child; Physicians and Surgeons.