The Law's Definition Of Fetal Life: When Does It Become A Baby?

The question of when a fetus becomes a baby is a complex and multifaceted one, with legal, scientific, and ethical dimensions. From a scientific standpoint, a fetus is typically defined as a developing human offspring from the ninth week of pregnancy until birth. However, the exact point at which a fetus becomes a baby is a subject of ongoing debate, and there is no clear consensus.

Legally, the concept of fetal rights has evolved over time, and there is no specific law that determines when a fetus becomes a baby and gains human rights. While some countries and jurisdictions have assigned rights to fetuses, the term fetus itself is not always suitable for legal purposes due to its unclear starting point and associations with dehumanization.

The debate surrounding fetal personhood and its implications for reproductive rights and abortion access is a highly contentious issue, with arguments centering on the moral and legal status of the fetus.

Fetal personhood laws

The concept of fetal personhood has been gaining legal ground for years. Currently, 17 states have established fetal personhood by law or judicial decision to apply to criminal law or both criminal and civil laws. At least 24 states include personhood language in laws regulating or prohibiting abortion care.

The implications of fetal personhood laws are far-reaching and complex, impacting the rights and freedoms of pregnant people, as well as access to reproductive healthcare and abortion.

Abortion rights

Abortion in History

Abortion has been practised for thousands of years in cultures throughout the world. In antiquity, abortion was sometimes restricted, with some versions of the Hippocratic Oath indirectly protecting the fetus by prohibiting abortifacients. The Aristotelian concept of delayed hominization, which influenced philosophical views until the mid-19th century, posited that human fetuses gradually acquire their souls, and in the early stages of pregnancy, the fetus is not fully human. In contrast, the Pythagoreans viewed fetal life as co-equal in moral worth with adult human life from conception.

Abortion in Religion

Abortion is granted a right to life from conception in several Hindu texts on ethics and righteousness, such as the Dharmaśāstra. Similarly, Islamic law grants the fetus a right to life, particularly after ensoulment, which is believed to occur 40–42 days or four months after conception.

Abortion in Law

The term "fetal rights" came into wide usage after Roe v. Wade, the 1973 landmark case that legalized abortion in the United States, which was essentially overturned in 2022. While most international human rights charters reject claims that human rights should be granted from conception or any time before birth, the fetus is granted various rights in the constitutions and civil codes of some countries.

There is no specific law that details when a fetus becomes a baby and has human rights. However, the murder of a pregnant woman is considered a double homicide in some U.S. states. Additionally, the United States passed the Unborn Victims of Violence Act in 2004, which defines violent assault against a pregnant woman as a crime against both the woman and the fetus.

Abortion in Medicine

Abortion is considered an essential part of sexual and reproductive healthcare. Both in-clinic and medication abortions are deemed very safe.

Abortion in Politics

Politicians opposed to abortion rights have stated that their ultimate goal is to ban abortion nationwide. The ability to control one's personal medical decisions, including whether to end a pregnancy, is considered a fundamental human right. Restricting abortion access is viewed as dangerous and inhumane.

Abortion Bans

Abortion bans can trap people in inhumane situations, forcing them to remain pregnant or travel long distances for a legal abortion. Bans disproportionately harm communities of color and people with low incomes, who already face historic and systemic barriers to healthcare.

The abortion rights movement is strong and continues to fight for the rights of all people to live the life they choose.

The right to life

The Rights of the Unborn

International Human Rights Law

International human rights law provides some guidance on the right to life of the unborn, but the language used in these documents can be ambiguous. The 1948 Universal Declaration of Human Rights states that "all human beings are born free and equal in dignity and rights," implying that human rights, including the right to life, begin at birth. However, the International Covenant on Civil and Political Rights (ICCPR), a legally binding human rights treaty, states that "every human being has the inherent right to life," without specifying a timeframe.

Other human rights documents, such as the European Convention on Human Rights and the African Charter for Human and Peoples' Rights, use similar wording, omitting the word "born." The Convention on the Rights of the Child adds to the ambiguity by stating that "the child...needs...appropriate legal protection before as well as after birth." However, this statement is qualified by other articles that prioritize the rights of pregnant girls over those of their fetuses.

The American Convention on Human Rights is the only general international human rights instrument that explicitly extends the right to life to the unborn, stating that "every person has the right to have his life respected...from the moment of conception."

Country-Specific Laws

While international human rights law provides some guidance, the right to life of the unborn is primarily shaped by country-specific laws and cultural norms. For example, in the United States, the Supreme Court's decision to overturn Roe v. Wade in 2022 has led to varying state laws regarding abortion access. Some states have strong gestational limits on abortion, while others provide certain levels of criminal protection for the unborn.

In contrast, other countries, such as Italy, grant embryos legal subject status even before implantation if fertilization occurs in vitro. This diversity in legal approaches to the right to life of the unborn highlights the complexity and divergence of opinions on this issue worldwide.

Inheritance rights

The concept of fetal rights has evolved to include issues of maternal substance use disorders, such as alcohol use disorder and opioid use disorder. While most international human rights instruments do not include 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.

The property law of the Roman Empire granted inheritance rights to a fetus, as long as it was conceived before the testator's death (usually the father) and then born alive. The inheritance rights of the fetus were a means of fulfilling the testator's will. The interests of the fetus could be protected by a custodian, usually a male relative, but in some cases, a woman could be appointed. The Digest granted the fetus consanguinity rights, vesting the protection of fetal interests in the praetor.

In the Byzantine Empire, a fetus was regarded as a natural person and could inherit alongside blood descendants and slaves. Byzantine Emperor Michael VIII Palaiologos allowed soldiers to transfer their pronoiai to their unborn children. 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 an act of parliament to avoid potential disputes among his descendants.

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. Both 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. 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.

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

The recognition of inheritance rights for a fetus varies across different legal systems and countries. While some countries grant inheritance rights to a fetus, others consider the fetus as part of the mother and do not recognize separate legal rights. The determination of inheritance rights for a fetus can have significant implications for property distribution and succession.

The impact on IVF

The question of when a fetus becomes a baby by law is a complex and multifaceted one, with varying answers depending on the specific jurisdiction and context. While the exact timing of this transformation is not always clear, it has significant implications for In Vitro Fertilization (IVF) procedures and the individuals who undergo them. Here are some ways in which the legal status of a fetus can impact the process of IVF:

Impact on Embryo Creation and Freezing

IVF procedures often result in the creation of multiple embryos, which can be frozen indefinitely for future use. However, if a fetus is legally considered a person from the moment of conception or at a very early stage of development, this could impact the creation and freezing of embryos. It may raise ethical and legal questions about the status of these frozen embryos, potentially limiting the number that can be created or imposing stricter regulations on their storage and use.

Access to IVF Procedures

The legal recognition of fetal personhood could also influence access to IVF procedures themselves. If certain fertility treatments are viewed as potentially harmful to the embryo, there may be restrictions on their use or availability. This could limit the options for individuals or couples seeking fertility assistance, especially if certain procedures are deemed unacceptable under the law.

Parental Rights and Responsibilities

Fetal personhood laws could grant legal rights to embryos and fetuses, which may have implications for the parental rights and responsibilities of those undergoing IVF. For example, if an embryo is considered a legal person, it could be argued that it has inheritance rights or other legal entitlements typically associated with born children. This could lead to complex legal questions regarding the rights and responsibilities of the biological parents, particularly in cases of donor conception or surrogacy.

Criminalization of Pregnancy Outcomes

The impact of fetal personhood laws on IVF also extends to potential criminalization of pregnancy outcomes. If a fetus is legally recognized as a person, there may be increased scrutiny and legal consequences for pregnancy losses, including miscarriages. This could create a climate of fear and uncertainty for individuals undergoing IVF, as they may worry about potential legal repercussions if their pregnancy does not result in a live birth.

Regulation of Implantation and Embryo Selection

Fetal personhood laws could also impact the process of embryo selection and implantation during IVF. If the law grants legal rights to embryos, it may influence the number of embryos that can be implanted during a transfer procedure. Additionally, certain methods of embryo selection, such as preimplantation genetic testing, could face increased regulatory scrutiny or even be prohibited to protect the rights of the embryo.

Impact on Contraception Access

Finally, the impact of fetal personhood laws on IVF may extend beyond the procedure itself and influence contraception access. Some forms of contraception, such as intrauterine devices (IUDs) and emergency contraception, have been criticized by anti-abortion advocates as they can prevent the implantation of a fertilized egg. If fetal personhood is legally established, it could result in restrictions on or reduced access to these forms of contraception, limiting the reproductive choices available to individuals.

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