FETAL RIGHTS

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

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

• The Unborn Victims of Violence Act is a United States law which defines violent assault committed against pregnant women as being a crime against two persons: the woman and the fetus she carries. ^[1] This law was passed in 2004 after the murder of the then pregnant Laci Peterson and her fetus, Connor Peterson.

• In 2002, U.S. President George W. Bush announced a plan to ensure health care coverage for fetuses under the State Children's Health Insurance Program (CHIP). ^[2]

• 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 fetus, in compensation. ^[3]

Right-to-life and legal personhood

Legislative measures sometimes seek to establish the right to life of the fetus from the moment of fertilisation. Such laws regard the fetus as a person whose legal status is on par with that of any other members 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 abortion in the first trimester, providing that women 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.

Much opposition to legal abortion in the West is based on a concern for fetal rights. Similarly many pro-choice groups oppose fetal rights, even when they do not impinge directly on the abortion issue, because of a perception of these moves as a slippery slope strategy to restricting abortion choice. ^[4]

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 women from engaging in certain behaviors while pregnant. Also, in some countries, laws have been passed to restrict the practice of abortion based upon the gender of the fetus.

• Many jurisdictions actively warn against the consumption of alcoholic beverages by pregnant women, recommending a maximum intake or total abstinence, due to its association with fetal alcohol spectrum disorders. 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, the United Kingdom, and the United States.

• Many national and international agencies recommend dietary guidelines for pregnant women 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. ^[5] 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. ^[6]

• 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 women have been criminally prosecuted or arrested under existing child abuse statutes for allegedly bringing about harm in-utero through their conduct during pregnancy. ^[7] 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. ^[7] Drug addicts have been accused of "supplying drugs to a minor" through unintentional chemical subjection via the umbilical cord. ^[7] Others have been charged with assault with a deadly weapon with the "deadly weapon" in question being an illegal drug.^[7] Minnesota, Wisconsin and South Dakota allow women who continue to use substances while pregnant to be civilly committed. ^[7] 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 the deliberate termination of female fetuses through sex-selective abortion. 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 abortion for reasons of fetal sex in 2002 and China in 2003.

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. ^[8]
• 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 fetus. However, in the 1997 case Whitner v. South Carolina, the Supreme Court of South Carolina upheld its prosecution of Whitner. ^{[9] [10] [11]}
• A woman from Winnipeg, Manitoba woman 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 commited to a drug rehabilitation facility for the remaining duration of her pregnancy. A judge agreed that the woman should be taken into custody. However, the decision was overturned by the Manitoba Court of Appeal. ^[12]
• 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. ^[13] Rowland was later sentenced to 18 months probation as a result of secondary charge of child endangerment. ^[14]
• 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. ^[15] She gave birth to a child in September 2003. ^[16]

Debate

The debate around moral rights usually revolves around two main questions. Is the fetus a person? And if so, do any rights that it has as a person outweigh the rights of its parents?

If the fetus is a person then it would have the rights accorded to persons. However, challenges to the personhood of the fetus have been proposed. The ethicist Peter Singer has argued that our notion of personhood relates to a being's possession of the capacities for reason and self-consciousness, and that therefore Homo sapiens without these characteristics should not be considered persons.^[17] Since children in the fetal and even infant stages of development do not possess such capacities, Singer argues that they should not be considered persons.

Critics of this view argue that individuals comatose states, or perhaps individuals who are simply unconscious, could not be considered persons as they would not meet Singer's criteria at that point of time. Such critics also claim that such a view could conflict with the identity argument which states that either the individual in question is a person or he or she is not as it seems to allow some ambiguity as to precisely when a being is a person. ^[18]

If fetal rights are agreed upon then another relevant question arises in cases where these conflict with the rights of parents. Does the right of the fetus (e.g. to live or to be born in a healthy state) outweigh the parent's rights to autonomy? Or do the parent's rights to autonomy outweigh the fetal rights? In the debate on abortion those who consider themselves "pro-life" generally believe that the fetus' rights outweigh the parent's rights. People who are "pro-choice" but who might also agree with the personhood of the fetus generally would argue that the mother's right to autonomy supercedes the rights of the fetus as otherwise it would compel the her to act in such a way that would severely limit her freedom. ^[19]

See also

References

1. ^ Congress of the United States of America. (March 25, 2004). Unborn Victims of Violence Act of 2004. H.R.1997. Retrieved July 31, 2006.
2. ^ "The Bush Administration's Plan for Fetal Care." (February 07, 2002). On Point. Retrieved July 31, 2006.
3. ^ Abortion Laws of the World. Annual Review of Population Law. Retrieved July 14, 2006.
4. ^ Farmer, Rebecca. National Organization for Women. (2001). "Fetal Rights" Initiatives Concern Abortion Rights Supporters. Retrieved July 31, 2006.
5. ^ Rosenburg, J. (2004). Low Birth Weight Is Linked to Timing of Prenatal Care and Other Maternal Factors. International Family Planning Perspectives, 30 (2). Retrieved July 31, 2006.
6. ^ "Legislators Want To Ban Pregnant Women From Smoking." (June 14, 2006). The Hometown Channel. Retrieved July 31, 2006.
7. ^ ^{a b c d e} Center for Reproductive Rights. (September 2000). Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women’s Health and Children’s Interests. Retrieved July 31, 2006.
8. ^ American Civil Liberties Union. (September 30, 1997). Coercive and Punitive Governmental Responses to Women's Conduct During Pregnancy. Retrieved July 31, 2006.
9. ^ Costello, Robert G. (2001). Fetal Endangerment: A Challenge For Criminal Law. Boalt Journal of Criminal Law, 4. Retrieved July 31, 2006.
10. ^ Lewin, Tamar. (October 30, 1997). "Abuse Laws Cover Fetus, a High Court Rules." The New York Times. Retrieved July 30, 2006.
11. ^ v. State, 328 S.C. 1, 492 S.E.2d 777 (1997)
12. ^ Robinson, B.A. Ontario Consultants for Religious Tolerance. (November 14, 1997). Balancing the Rights of the Woman and Her Fetus. Retrieved July 31, 2006.
13. ^ "Mother charged in Caesarean row." (March 12, 2004). BBC News. Retrieved July 31, 2006.
14. ^ Sage, Alexandria. (April 29, 2004). "Utah C-Section Mom Gets Probation." CBS News. Retrieved July 31, 2006.
15. ^ Canedy, Dana. (May 15, 2003). "Gov. Jeb Bush to Seek Guardian for Fetus of Rape Victim." The New York Times. Retrieved July 31, 2006.
16. ^ "Disabled Rape Victim Gives Birth." (September 1, 2003). CBS News. Retrieved July 31, 2006.
17. ^ Singer, Peter. (1995). Abortion. In In Ted Honderich (ed.), The Oxford Companion to Philosophy, pp. 2-3. Retrieved July 31, 2006.
18. ^ Pruss, Alexander R. (November 25, 2001). I Was Once a Fetus: An Identity-Based Argument Against Abortion. Retrieved July 31, 2006.
19. ^ Jarvis Thomson, Judith. (1971). A Defense of Abortion. Philosophy and Public Affairs, 1 (1), p. 47. Retrieved April 28, 2006.

External links

• FetalRights.com
• Fetal Alcohol and Drug Unit
• National Advocates for Pregnant Women
• American Pregnancy Association: Mercury Levels in Fish
• March of Dimes: Drinking Alcohol During Pregnancy