Fetal rights

Fetal rights (alternatively prenatal rights^[1]) are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after Roe v. Wade, the 1973 landmark case that legalized abortion in the United States and was essentially overturned in 2022.^[2][3] The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder.^[4] Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth."^[5] While most international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of some countries.^[6]

There are jurisdictions where children in the prenatal stage are assigned rights even before they reach the fetal stage. For example, in Italy, embryos are considered subjects of law already after fertilization and even before implantation (if fertilization happens in vitro).^[7] The term fetus itself is not exactly suitable for legal purposes, as it denotes only a part of the prenatal period with a starting point that remains unclear. Furthermore, its archetypal meaning is associated with plants, contributing to the dehumanization of the child in the prenatal stage.^[8]

In antiquity, the fetus was sometimes protected by restrictions on abortion.^{[citation needed]} Some versions of the Hippocratic Oath indirectly protected the fetus by prohibiting abortifacients.^[9] Until approximately the mid-19th century, philosophical views on the fetus were influenced in part by Aristotelian concept of delayed hominization.^[10] According to it, human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human.^[10] Relying on examinations of miscarried fetuses, Aristotle believed that male fetuses acquire their basic form at around day 40, and female ones at day 90.^[10] For Pythagoreans, however, fetal life was co-equal in moral worth with adult human life from the moment of conception; similar views were held by Stoics.^[11] Ancient Athenian law did not recognise fetal right to life before the ritual acknowledgement of the child.^[12] The law, however, allowed for the postponement of the execution of sentenced pregnant women until a baby was delivered.^[13]

Several Hindu texts on ethics and righteousness, such as Dharmaśāstra, give fetus a right to life from conception, although in practice such texts are not always followed.^[14]

The property law of the Roman Empire granted fetus inheritance rights.^[15] As long as the fetus was conceived before the testator's death (usually, the father) and then born alive, their inheritance rights were equal to those born before the testator's death.^[15] Even though under Roman law the fetus was not a legal subject, it was a potential person whose property rights were protected after birth.^[15] Roman jurist Ulpian noted that "in the Law of the Twelve Tables he who was in the womb is admitted to the legitimate succession, if he has been born".^[16] Another jurist Julius Paulus similarly noted, that "the ancients provided for the free unborn child in such a way that they preserved for it all legal rights intact until the time of birth".^[16] The inheritance rights of the fetus were means of fulfilling the testator's will.^[15] The interests of the fetus could be protected by a custodian, usually a male relative, but in some cases a woman herself could be appointed the custodian.^[17] The Digest granted the fetus consanguinity rights,^[18] vesting the protection of fetal interests in the praetor. The Digest also prohibited the execution of pregnant women until delivery.^[19] The Roman law also envisaged that if a slave mother had been free for any period between the time of the conception and childbirth, the child would be regarded as born free.^[20] Although the mother might have become slave again before the childbirth, it was considered that the unborn should not be prejudiced by the mother's misfortune.^[20] At the same time, Greek and Roman sources do not mention issues of alcohol consumption by pregnant women.^[21] On that basis it is believed that Greeks and Romans were not aware of the fetal alcohol syndrome.^[21]

After the spread of Christianity, an issue emerged: whether it was permissible for a pregnant woman to be baptised before childbirth, due to uncertainty as to whether the fetus would be cobaptised with its mother. The Synod of Neo-Caesarea decided that the baptism of a pregnant woman in any stage of gestation did not include the fetus.^[22] In the Middle Ages, fetal rights were closely associated with the concept of ensoulment. In some cases the fetus could also inherit or be in the order of succession. In the Byzantine Empire, a fetus was regarded as a natural person and could inherit alongside blood descendants and slaves.^[23] Byzantine Emperor Michael VIII Palaiologos allowed soldiers to transfer their pronoiai to their unborn children.^[24] The unborn royals were increasingly granted the right to succession. In 1284, King of Scotland Alexander III designated his future unborn children as heirs presumptive by the act of parliament to avoid potential squabbles among loyal descendants of his lineage.^[25] The 1315 entail of Scottish king Robert the Bruce allowed the unborn collateral individuals to be in line for the throne beyond his brother Edward and daughter Marjorie Bruce.^[25] After the death of Albert II of Germany in 1439, his then-unborn son Ladislaus the Posthumous inherited his father's sovereign rights.^[26] In 1536, the British Parliament gave the unborn children of Henry VIII and Jane Seymour precedence in the line of royal succession.^[27] The medieval distinction between the ensouled and the unensouled fetus was removed after Pope Pius IX decreed in 1854 that the ensoulment of Virgin Mary occurred at conception.^[28]

In 1751, a pamphlet "The Petition of the Unborn Babes to the Censors of the Royal College of Physicians of London" by physician Frank Nicholls was published, advocating fetal right to life and protection. The pamphlet anticipated many of the arguments of the 21st century's pro-life movement.^[29] In 1762, English jurist and judge William Blackstone wrote that an "infant in its mother's womb" could benefit from a legacy and receive an estate as if it were actually bom.^[30] The fetus was thus considered a person for purposes of inheritance.^[30] Similarly to the Roman law, the Napoleonic Code envisaged that if a woman becomes a widow, a male guardian should be appointed for her unborn child.^[31]

In the 20th century and particularly after World War II fetal rights issues continued to develop. In 1948, the Declaration of Geneva was adopted which prior to amendments in 1983 and 2005, advised physicians to "maintain the utmost respect for human life from the time of its conception".^[32] In 1967, American Bar Association Journal noted "the modern trend of legal decisions that grant every property and personal right to the unborn child, including the right to life itself, from conception on".^[33] In 1975, while interpreting the right to life under the Basic Law of Germany, the Federal Constitutional Court opined that "life in the sense of historical existence of a human individual" exists "at least from the 14th day after conception (nidation, individuation)" and thus everyone's right to life under the Basic Law of Germany includes the unborn as human beings.^[34] The 1980s witnessed the reappearance of fetal protection in the workplace, aimed at guarding fetal health in potentially hazardous working conditions.^[35] In 1983, Ireland was one of the first countries in the world to constitutionalize a fetal right to life by passing the Eighth Amendment to the Constitution, later repealed in September 2018.^[36]

The only modern international treaty specifically tackling the fetal rights is the American Convention on Human Rights which envisages the fetal right to life from the moment of conception.^[37] The convention was ratified by twenty five countries of the Americas (two countries later denounced the convention leading the current number of ratifiers to be twenty three ^[38])^[a] in 1973–1993. Mexico ratified the convention with the reservation that the expression "in general" concerning the fetal right to life does not constitute an obligation and that this matter falls within the domain of the states.^[40] While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person.^[40] However, only a minority of state ratifiers completely prohibit abortion without allowing for an exception when the pregnant woman's life is in danger (Dominican Republic, El Salvador and Nicaragua).^[41]

Based on the 1959 Declaration of the Rights of the Child, preambular paragraph 9 of the Convention on the Rights of the Child (CRC) states that "the child... needs... appropriate legal protection before as well as after birth", but due to ambiguity the legal protection of the fetus conflicts with the rights of a pregnant girl under the same Convention.^[42] Such conflict is sometimes called maternal-fetal conflict.^[43] Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus.^[42] The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC.^[44] A proposal to grant fetus the right to life from conception was put forward by Belgium, Brazil, El Salvador, Mexico and Morocco during drafting of the International Covenant on Civil and Political Rights (ICCPR), but it was rejected in favor of less stringent wording.^[45] At the same time, ICCPR prohibits the execution of pregnant women.^[46]

The World Medical Association Declaration on Therapeutic Abortion notes that "circumstances bringing the interests of a mother into conflict with the interests of her unborn child create a dilemma and raise the question as to whether or not the pregnancy should be deliberately terminated".^[47] The Dublin Declaration on Maternal Healthcare, signed in 2012, prioritizes fetal right to life by noting that "there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child".^[48] Several organizations, such as World Health Organization (WHO) and Human Rights Watch prioritize women's reproductive rights over fetal rights.^[49]

Under European law, a fetus is generally regarded as an in utero part of the mother and thus its rights are held by the mother.^[50] The European Court of Human Rights opined that the right to life does not extend to fetuses under Article 2 of the European Convention on Human Rights (ECHR).^[50] In H. v. Norway, the European Commission did not exclude that "in certain circumstances" the fetus may enjoy "a certain protection under Article 2, first sentence".^[51] Two European Union member states (Hungary and Slovakia) grant the fetus the constitutional right to life. The Constitution of Norway grants the unborn royal children the right of succession to the throne.^[52] In English common law, fetus is granted inheritance rights under the born alive rule.^[50]

Islamic law grants the fetus the right to life particularly after ensoulment, which according to various Islamic jurists happens after 40–42 days or four months after conception^[53] (some Shiite jurists believe the ensoulment occurs after 11 to 14 days, during the implantation of the fertilized egg in the uterine wall).^[54] Both the Sunni and Shiite jurists accord the fetus inheritance rights under two conditions: if a man dies and a pregnant wife survives him, the fetal right to inherit is secure and the inheritance cannot be disposed of before the fetus' share is set aside.^[54] Under the second condition, if a woman aborts the fetus at any stage and ignores any vital signs, the fetus is entitled to the inheritance of any legitimate legator who dies after its conception.^[54]

The legal debate on fetal rights sometimes invokes the notion of fetal viability.^[55] Its primary determinant is fetal lung capacity which typically develops at twenty-three to twenty-four weeks.^[55] The twenty-three weeks is usually regarded as the lower bound of fetal viability because technology has been unable to surpass the limit set by lung development.^[55] It was nonetheless stated that technology has made it possible to regard the fetus as a patient independent of the mother.^[2] In Winnipeg Child and Family Services v. G., the judges argued that "technologies like real-time ultrasound, fetal heart monitors and foetoscopy can clearly show us that the fetus is alive" and thus the born alive rule is "outdated and indefensible".^[56]

The creation of human embryos for all research purposes is prohibited by the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine. However, similarly to the abortion debate, in the normative debate on embryo research two views can be distinguished: a "fetalist" view focusing on the moral value of the embryo, and a "feminist" view advocating the interests of women, particularly candidate oocyte donors.^[57]

In most jurisdictions, children in the prenatal stage are not considered subjects of law, or bearers of subjective rights. According to Aude Bertrand-Mirkovic, children in the prenatal stage are human persons but do not need legal personhood, as their rights can be protected by objective law.^[58] In civil law, legislature often resort to infans conceptus rule, which is rooted in Roman law and means that the pre-born child is treated as born whenever it is considered in their interest.^[59] Enforcement of this rule is subjected to a condition of live (and sometimes viable) birth.^[60] In Common law, there exists the Born alive rule, — the principle applied in criminal matters which says that ‘a person cannot be held responsible for injuries inflicted on a foetus in utero unless and until it is born alive’.^[61]

In some countries, such as the Republic of El Salvador,^[62] the Italian Republic,^[63] and the Republic of Peru,^[64] the child in the prenatal stage is endowed with the status of a subject of law. Recognition of a child in the prenatal stage as a subject of law in practice does not imply the prohibition of abortion^[65] and does generally imply the emergence of subjective non-property rights. In contrast, most subjective property rights may arise before birth but can be exercised already after birth.

According to Oleksandra Steshenko, prenatal personhood should be seen as legal personhood of a particular type, as its scope and content differ from the personhood of born people:^[66] a) prenatal personhood always lacks the capacity to act;^[67] b) it does not necessarily require the civil registration of prenatal existence;^[68] c) the beginning of prenatal existence can be determined, when necessary, using legal presumptions;^[69] d) every prenatal right should be weighed against the rights of a pregnant mother and, where relevant, against rights of a father;^[70] e) as the duration of prenatal existence increases, the child gradually acquires a broader range of rights with increasing scope.^[71]

Country	Constitutional protection of fetal rights		Recognition of personhood
Canada	No		No	223. When child becomes human being[72] A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not: (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed.
Chile	Yes	Article 19[73] The Constitution guarantees all persons: 1.The right to life and to the physical and mental integrity of the person. The law protects the life of the unborn.	Yes
Dominican Republic	Yes	Article 37[74] The right to life is inviolable from conception until death. The death penalty may not be established, pronounced, nor applied in any case.	Yes
Ecuador	Yes	Article 45[75] Children and adolescents shall enjoy the rights that are common to all human beings, in addition to those that are specific to their age. The State shall recognize and guarantee life, including care and protection from the time of conception.	Yes
El Salvador	Yes	Article 1[76] El Salvador recognizes the human person as the origin and the end of the activity of the State, which is organized to attain justice, judicial security, and the common good. In that same manner, it recognizes as a human person every human being since the moment of conception.	Yes
Guatemala	Yes	Article 3[77] The State guarantees and protects the human life from its conception, as well as the integrity and security of the person.	Yes
Hungary	Yes	Article 2[78] Human dignity shall be inviolable. Every human being shall have the right to life and human dignity; the life of the foetus shall be protected from the moment of conception.	Yes
Honduras	Yes	Article 67[79] The unborn shall be considered as born for all rights accorded within the limits established by law.	Yes
Madagascar	Yes	Article 19[80] The State recognizes and organizes for all individuals the right to the protection of health from their conception through the organization of free public health care, which gratuitousness results from the capacity of the national solidarity.	Yes
Peru	Yes	Article 2.[81] To life, his identity, his moral, psychical, and physical integrity, and his free development and well-being. The unborn child is a rights-bearing subject in all cases that benefit him.	Yes
Brazil	No		Yes	Article 2. [82] The civil personality of the person starts in the birth with the life, but the law safeguard, since the conception, the rights of the unborn.
Philippines	Yes	Section 12[83] The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.	Yes
Slovakia	Yes	Article 15[84] 1. Everyone has the right to life. Human life is worthy of protection already before birth.	Yes
Solomon Islands	No		Yes[85]

The Eighth Amendment of the Constitution of Ireland gave "the unborn" a right to life equal to that of "the mother".^[86] In 2018, the Supreme Court ruled that the fetus' only inherent constitutionally protected right is the right to be born, overturning a High Court ruling that a fetus additionally possessed the children's rights guaranteed by Article 42A of the Constitution.^[87] On 25 May 2018, a referendum was passed^[88] which amended the Constitution by the substitution of the former provision recognising the right to life of the unborn, with one permitting the Oireachtas, the Irish Parliament, to legislate for the termination of pregnancies.^[89] This amendment took effect when it was signed into law by the President of Ireland on 18 September 2018, and abortion was governed by the Protection of Life During Pregnancy Act 2013 until it was replaced and repealed by the Health (Regulation of Termination of Pregnancy) Act 2018, which took effect on 1 January 2019.

In the United States, as of 2014^[update], thirty-eight states provide certain level of criminal protection for the unborn, and twenty-three of these states have laws that protect the fetus from conception until birth.^[90] All US states–by statute, court rule or case law–permit a guardian ad litem to represent the interests of the unborn.^[91] In 1999, the Unborn Victims of Violence Act was introduced into United States Congress which defines violent assault committed against pregnant women as being a crime against two victims: the woman and the fetus she carries.^[92] This law was passed in 2004 after the murder of Laci Peterson and the fetus she was carrying. 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 (SCHIP).^[93]

The civil codes of several countries, such as China (including Hong Kong and Macau)^[94] and Russia, as well as some US states,^[91] grant fetus inheritance rights, usually under the born alive rule. In the civil code of Iran, fetus can inherit in case of abortion that took place due to a crime, as long as the fetus was alive even for a second after birth.^{[citation needed]} Under the civil code of Japan, for the purposes of inheritance the fetus is deemed to have already been born.^[95] The civil codes of the Philippines and Spain envisage that donations to the unborn children can be made and accepted by "persons who would legally represent them if they were already born".^[96][97] The same is allowed by the Malikis.^[98]

Alongside Norway, the Constitution of Bhutan grants the unborn royal children the right to succession, but only if there is no male heir.^[99]

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 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. In Poland in 2017 a bill was proposed that would limit the liberty of a woman (coercive and preventive measures such as isolation) who was known to drink during pregnancy. But the draw of the bill was not brought up because it was considered controversial and an erosion of women's autonomy and liberty.^{[100][101][102]}
• 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.^[103] 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.^[104]
• No U.S. state has enacted a law which criminalizes specific behavior during pregnancy,^{[needs update]} 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.^[105] Reasons for pressing charges included use of illicit substances, consumption of alcohol, and failure to comply with a doctor's order of bedrest or caesarean section.^[105] Drug addicts have been accused of "supplying drugs to a minor" through unintentional chemical subjection via the umbilical cord.^[105] Others have been charged with assault with a deadly weapon with the "deadly weapon" in question being an illegal drug.^[105] Minnesota, Wisconsin and South Dakota allow women who continue to use substances while pregnant to be civilly committed.^[105] 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 led to sex-selective abortion of female fetuses, leading to the disparity between male-to-female birth rates which is observed in some places. It is a crime in all these jurisdictions to procure an abortion for the purposes of sex selection.^[106][107]