Fetal rights - Women

May 19, 2012


		1 Introduction 2 Fetal protection in law 3 Behavioral intervention 4 Debate 5 See also 6 References 7 External links

Women Women

Fetal rights

Wikipedia

The term fetal rights can refer either to legal rights accorded to fetuses or to the moral rights that some people ascribe to them.

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Fetal protection in law

Image:H.R. 1997 signing.jpg|thumb|250px||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 Welfare (financial aid)|social assistance, or an inheritance|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. <ref name="lacislaw"> Congress of the United States of America. (March 25, 2004). http://news.findlaw.com/hdocs/docs/abortion/unbornbill32504.html Unborn Victims of Violence Act of 2004. H.R.1997. Retrieved July 31, 2006.</ref> 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 of the United States|President George W. Bush announced a plan to ensure health care coverage for fetuses under the State Children's Health Insurance Program (CHIP). <ref name="chip">"http://www.onpointradio.org/shows/2002/02/20020207_a_main.asp The Bush Administration's Plan for Fetal Care." (February 07, 2002). On Point. Retrieved July 31, 2006. </ref>

Iran|Iranian law holds that anyone who brings about a miscarriage must pay a fine|monetary fine, which varies depending upon the stage of development and/or sex of the fetus, in compensation. <ref>http://annualreview.law.harvard.edu/population/abortion/Iran.abo.html Abortion Laws of the World. Annual Review of Population Law. Retrieved July 14, 2006.</ref>

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 Human|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 ratify|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 Ireland|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 Basic Law for the Federal Republic of Germany|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 informed consent|counselling designed to discourage termination and "protect unborn life". The intermediate decision was the result of an attempt to join East Germany|East Germany's Abortion in Germany|abortion law to that of West Germany after German reunification|reunification in 1990.

Other governments have laws in place that state that fetuses are not legally recognized persons:

In Canadian law, under section 223 of the Canadian Criminal Code, a fetus 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 pro-life|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. <ref>Farmer, Rebecca. National Organization for Women. (2001). http://www.now.org/nnt/fall-2001/fetalrights.html "Fetal Rights" Initiatives Concern Abortion Rights Supporters. Retrieved July 31, 2006.</ref>

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Behavioral intervention

Various initiatives, prompted by concern for the ill effects which might be posed to the health or fetal development|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 Alcoholic beverages ??? recommended maximum intake|maximum intake or total Teetotalism|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 Reference Intake|dietary guidelines for pregnant women due to the health risks posed by the consumption of fish contaminated with methylmercury through industry|industrial pollution. Studies have linked exposure to various levels of methylmercury in utero to neurology|neurological disorders in children.

The use of tobacco products or exposure to secondhand smoke during pregnancy has been linked to birth weight|low birth weight. <ref>Rosenburg, J. (2004). http://www.guttmacher.org/pubs/journals/3010104.html#1 Low Birth Weight Is Linked to Timing of Prenatal Care and Other Maternal Factors. International Family Planning Perspectives, 30 (2). Retrieved July 31, 2006. </ref> Governor Mike Huckabee of Arkansas, citing studies which attribute 10% of infant deaths to tobacco smoking|tobacco-smoking mothers, considered adopting a smoking ban for pregnant women in 2006 with the aim of reducing infant mortality. <ref name="huckabee">"http://www.thehometownchannel.com/news/9372396/detail.htmlSome Legislators Want To Ban Pregnant Women From Smoking." (June 14, 2006). The Hometown Channel. Retrieved July 31, 2006. </ref>

No U.S. states|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 prosecution|criminally prosecuted or arrest|arrested under existing child abuse statutes for allegedly bringing about harm in-utero through their conduct during pregnancy. <ref name="crlp">Center for Reproductive Rights. (September 2000). http://www.crlp.org/pdf/pub_bp_punishingwomen.pdf Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women???s Health and Children???s Interests. Retrieved July 31, 2006. </ref> Reasons for pressing charges included drug abuse|use of illicit drugs, consumption of alcohol, and failure to comply with a doctor's order of bedrest or caesarean section. <ref name="crlp" /> Drug addicts have been accused of "supplying drugs to a minor" through unintentional chemical subjection via the umbilical cord. <ref name="crlp" /> Others have been charged with assault with a deadly weapon with the "deadly weapon" in question being an illegal drug.<ref name="crlp" /> Minnesota, Wisconsin and South Dakota allow women who continue to substance abuse|use substances while pregnant to be involuntary commitment|civilly committed. <ref name="crlp" /> Some states require that medical providers report any infant who is born with a physical dependency, or who drug test|tests positive for residual traces of alcohol or controlled substances|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 and infanticide|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 (law)|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. <ref>American Civil Liberties Union. (September 30, 1997). http://www.aclu.org/reproductiverights/gen/16529res19970930.html Coercive and Punitive Governmental Responses to Women's Conduct During Pregnancy. Retrieved July 31, 2006. </ref>

Cornelia Whitner of Central, South Carolina plea|pled guilty in 1992 to a charge of child abuse|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 assistance of counsel|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. <ref>Costello, Robert G. (2001). http://www.boalt.org/bjcl/v4/v4costello.htm Fetal Endangerment: A Challenge For Criminal Law. Boalt Journal of Criminal Law, 4. Retrieved July 31, 2006. </ref> <ref>Lewin, Tamar. (October 30, 1997). "http://www.nytimes.com/specials/women/warchive/971030_903.html Abuse Laws Cover Fetus, a High Court Rules." The New York Times. Retrieved July 30, 2006. </ref> <ref> http://hometown.aol.com/abtrbng/whitner.htmWhitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997)</ref>

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 involuntary commitment|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. <ref> Robinson, B.A. Ontario Consultants for Religious Tolerance. (November 14, 1997). http://www.religioustolerance.org/abo_feta.htm Balancing the Rights of the Woman and Her Fetus. Retrieved July 31, 2006.</ref>

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. <ref>"http://news.bbc.co.uk/2/hi/americas/3504720.stm Mother charged in Caesarean row." (March 12, 2004). BBC News. Retrieved July 31, 2006. </ref> Rowland was later sentenced to 18 months probation as a result of secondary charge of child abuse|child endangerment. <ref>Sage, Alexandria. (April 29, 2004). "http://www.cbsnews.com/stories/2004/03/12/national/main605537.shtml Utah C-Section Mom Gets Probation." CBS News. Retrieved July 31, 2006. </ref>

Govenor|Gov. Jeb Bush sought appointment of a legal guardian to protect the fetus of a developmental disability|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. <ref>Canedy, Dana. (May 15, 2003). "http://query.nytimes.com/gst/fullpage.html?sec=health&res=9D07E0D61F3FF936A25756C0A9659C8B63 Gov. Jeb Bush to Seek Guardian for Fetus of Rape Victim." The New York Times. Retrieved July 31, 2006.</ref> She gave birth to a child in September 2003. <ref>"http://www.cbsnews.com/stories/2003/09/01/national/main570970.shtml Disabled Rape Victim Gives Birth." (September 1, 2003). CBS News. Retrieved July 31, 2006.</ref>

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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.<ref>Singer, Peter. (1995). http://www.utilitarian.net/singer/by/1995----03.htm Abortion. In In Ted Honderich (ed.), The Oxford Companion to Philosophy, pp. 2-3. Retrieved July 31, 2006.</ref> 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. <ref>Pruss, Alexander R. (November 25, 2001). http://www.georgetown.edu/faculty/ap85/papers/IWasAFetus.html I Was Once a Fetus: An Identity-Based Argument Against Abortion. Retrieved July 31, 2006.</ref>

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. <ref>Jarvis Thomson, Judith. (1971). http://www.utdallas.edu/~jfg021000/thomson.html A Defense of Abortion. Philosophy and Public Affairs, 1 (1), p. 47. Retrieved April 28, 2006.</ref>

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