Overview
Post-Dobbs, the United States has seen an onslaught of attacks on abortion care. Legal strategies grounded in “parental rights” and “prenatal personhood” are increasingly common and pose a particular threat to women, girls, and pregnant people’s lives, health, and well-being.
In this Q & A, Legal Voice Senior Reproductive Justice Counsel Wendy Heipt outlines what fetal personhood is, how it can become established in law, and why it is a threat to reproductive health and equity.
Fetal Personhood Q & A
What is Fetal Personhood?
Fetal personhood is the idea that every single stage of fetal life, starting at fertilization, is entitled to all the same legal rights as already-born people.
In a traditional pregnancy, this means that there are two fully rights-bearing people in one body – the pregnant person and the fetus.
What is the Problem with Giving Full Legal Rights to a Fetus?
When there is one person with full legal rights in a pregnancy – the pregnant person – that means that they are the person holding the decision-making power for their medical needs and lifestyle choices.
But when there are two people with full legal rights in one body, the pregnant person is no longer trusted to make the correct decisions for themselves and their pregnancy. Instead, the state steps in and tells the pregnant person what they can and cannot do for the good of the fetus. This could include everything from abortion health care to day-to-day decision-making, as explained below, and it undermines the autonomy of all pregnant and pregnant-capable people. It is also legally unworkable, as legal fetal personhood would upset many settled areas of law, from census counts to insurance law.
Have Any States Recognized Fetal Personhood?
Yes. As just one example, in 2018 Alabama voters passed a constitutional amendment to “support the rights of unborn children,” which was used to add an article to that effect to the Alabama state constitution. That amendment was relied upon by the state supreme court in a 2024 decision that held that test tube embryos could be viewed as rights-bearing children.
In that case, the court found that three couples, who had all successfully undergone In vitro fertilization (IVF) treatments and had their remaining embryos stored at an Alabama medical center where they were destroyed by an intruder, could sue under Alabama’s Wrongful Death of a Minor Act. The court said that fetal personhood required recognizing that frozen test tube embryos at any stage of development are “extrauterine children” and could be treated as actual, living children.
This decision obviously threatens the continued availability of IVF in several ways. As one example, if these embryos are ‘children,’ IVF storage facilities become frozen nurseries, with potential liability for each test tube. This vulnerability has already permanently closed an Alabama facility and threatens others involved in the process, such as transport companies. Additionally, while IVF embryos are currently covered by contracts, recognizing them as persons could limit a couple’s decision-making, and perhaps even mandate implantation. All told, these and other consequences would lead to higher costs, complex insurance requirements, and reduced availability of IVF.
Does Fetal Personhood Pose a Danger to Pregnant People or Those Capable of Becoming Pregnant Outside of IVF?
Yes. Assigning fetal personhood impacts daily medical decision making, both in the treatments pregnant people can access and the ones they are permitted to refuse. There have been numerous verified instances in both categories. For example, women have been denied medications used to treat conditions like Ehlers-Danlos syndrome, arthritis, and ulcers, because they were of “childbearing age,” and the drugs could impact a fetus. Pregnant people have also been denied the right to refuse procedures like blood transfusions and C-sections.
Under fetal personhood, any action that disrupts pregnancy or prevents implantation causes the killing of a human being possessing full legal rights. This has significant consequences for certain types of contraception, particularly intrauterine devices (IUDs) and emergency contraception (EC).
These are not the only areas where fetal personhood is already having an impact. Fetal personhood also negatively impacts stem cell research, subnational constitutional rights, criminal law, family law, and of course abortion health care.
When Did the Push for Fetal Personhood Begin in the U.S.?
The first fetal personhood court decision in the U.S. was in 1884. In this case, the court held that injury to a fetus was not an injury to a separate legal person but was part of the injury to the pregnant person. For the next 90 years there were only sporadic instances of bids for fetal personhood.
Then, in 1973, the U.S. Supreme Court decided Roe v. Wade. Only days after that decision, the first of what would be almost 300 federal proposals to establish a fetus as a separate legal entity was introduced in Congress. Most of these proposals did not go far, but they often had dozens of sponsors and helped normalize the idea that if you believed in the value of a fetus, you must also support the separate legal personhood of the fetus.
The next big leap forward for the fetal personhood movement was in 2022, when the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization. In the three plus years since, there has been markedly increased activity by fetal personhood proponents at the state, territorial and federal levels to establish full legal recognition for entities from fertilization until birth, in or out of the human body.
How Do Fetal Personhood Laws Get Passed Today?
Because this is an extreme concept, laws forwarding fetal personhood usually do not get passed outright. Instead, state proponents of fetal personhood engage in an incrementalist strategy of “fetal personhood creep.” As an example, they first integrate fetal personhood language into anti-abortion health care debates and laws by referring to all pre-birth potential life as a “child.” Then, they pass laws that ostensibly protect the pregnant person but really serve to differentiate the fetus as a separate person. For example, feticide laws criminalize the death of a fetus when it occurs during an attack on a pregnant person. While touted as a deterrent to harms against pregnant people, these laws have not been found to reduce violence. But they do normalize the idea that a fetus is a separate legal being independent of the pregnant person and serve as an incrementalist step in the personhood agenda.
After that, laws holding certain categories of pregnant people (such as those with substance abuse disorders) legally liable for real or feared fetal ailments, are passed, followed by laws that equate pregnancy loss with the loss of a born child. Alongside, there are usually also laws passed that curtail the reproductive rights of minors, which play on parental fears to both undermine advocates of reproductive justice and normalize the language of controlling pregnant people. These incremental steps are all designed to lead to full fetal personhood.
What Actions are Being Taken to Combat the Spread of Fetal Personhood?
Advocates are working to address the dangerous spread of fetal personhood on several fronts, including in education, legal work, and legislative advocacy. Education efforts include (a) making it clear that valuing a pregnancy does not equate to assigning full legal rights to a pregnancy and (b) explaining how fetal personhood would impact contraceptive access, the availability of IVF and the autonomy of all pregnant-capable people.
Want to Learn More About Fetal Personhood?
You can read Wendy Heipt’s article on fetal personhood in the Journal of Gender, Race and Justice or contact her at wheipt@legalvoice.org.
