Fetal Personhood Law In the United States

In the first U.S. case on the topic, the Supreme Court of Massachusetts held that injury to a fetus was recoverable to the pregnant person only, and not to the fetus as a legal person.

Six years later, an Illinois court agreed with Massachusetts and held that an infant could not recover for pre-birth injuries, because a fetus is part of the mother and not a legal person on its own.

A Louisiana court held that a pregnant person could not recover for the loss of her stillborn fetus following an accident, because fetuses are not regarded as distinct legal persons until they are born alive. No matter their gestational age, fetuses are not legally separate from the pregnant person.

In Roe v. Wade, the U.S. Supreme Court states that the word “person” as used in the Fourteenth Amendment “does not include the unborn.”

One week after Roe, the Human Life Amendment to the U.S. Constitution is proposed for the first time. This amendment, which failed, would have given fetus’ equal protection of the laws “from the moment of conception.”

North Dakota becomes the second state to pass a fetal homicide law (As of January 2024, thirty-nine states have fetal homicide statutes. Twenty-nine of these laws contain language defining a fetal person as beginning at conception.)

Reversing a long-standing unwillingness to punish pregnant women, the South Carolina Supreme Court holds that pregnant people may be prosecuted under criminal child abuse and endangerment laws for their conduct during pregnancy.

The Texas Supreme Court holds that a pregnant person can recover damages for negligence “that causes the loss of a fetus as part of the woman’s body,” not as a separate legal individual.

The U.S. Supreme Court holds that a specific state hospital’s policy of drug testing pregnant people without their consent–and reporting positive results to the police–violates the Fourth Amendment.

Arizona becomes the first state to require birth certificates for fetal deaths occurring after twenty weeks of gestation.

Congress passes the Unborn Victims of Violence Act, a law originally drafted in part by the National Right to Life Committee. This is the first federal law making it a separate crime to harm or kill a fetus during an act of violence against the pregnant person. Its passage triggers a wave of similar laws at the state level.

A Kentucky man is convicted of manslaughter in connection with the death of a viable fetus following a car accident. The court holds that the words “human being” in Kentucky’s penal code definitions includes a viable fetus.

Colorado voters reject a state constitutional amendment which would have modified the definition of “person” to begin at the moment of fertilization.

A new national organization, Personhood USA is created, with the stated goal of raising awareness for the personhood rights of the unborn.

The Oklahoma Supreme Court unanimously vetoes a ballot measure that would have given embryos full personhood rights, calling it “clearly unconstitutional” because it would block abortion access.

The Alabama Supreme Court rules that the state’s chemical endangerment law, written to protect children from dangerous meth labs, may be used to prosecute pregnant people who use drugs during pregnancy. The court holds that the word “child” includes embryos in utero. 

North Dakota becomes the first state to pass a personhood amendment to its state constitution. However, voters reject the measure two-to-one the following year.

The Alaska Supreme Court rejects a ballot measure that would generally prohibit abortion by granting rights to “all mankind from the beginning of biological development.” The Court concludes that the State’s duty to protect “all persons . . . did not extend to the unborn.”

Tennessee becomes the first state to enact a criminal law specifically allowing prosecution of pregnant people for illegal use of narcotics while pregnant. The statute includes penalties of up to 15 years in prison. The law expired in 2016, although there have been several attempts to reimplement it. By this point, hundreds of U.S. pregnant women have been arrested or forced into treatment.

Colorado voters reject, for the third time, an initiative to amend the state constitution’s definitions of “child” and “person” to include fetuses.

North Dakota voters similarly reject a personhood ballot measure, which would have amended to the state constitution to recognize the rights of fetuses “at any stage of development.”

Alabama voters pass a ballot initiative amending the state constitution making it public policy to “recognize and support the sanctity of unborn life and the rights of unborn children.”

At the federal level, the “Life at Conception Act,” is introduced, with 164 cosponsors. The Act proposes extending a constitutional “right to life” to fetuses and embryos, beginning at fertilization. 

The Ohio legislature considers, but does not pass, a bill which would have recognized personhood as beginning at conception.

Arizona enacts a fetal personhood provision, which seeks to “acknowledge” the equal rights, immunities, and privileges of an “unborn child at every stage of development. This law is later blocked by a federal district court.

Texas enacts its “Human Life Protection Act,” which defines an “unborn child” as “an individual . . . from fertilization until birth.”

During the 2023 legislative session, five states (Alabama, Missouri, New York, South Carolina, and Virginia) introduce legislation to ban all abortion procedures based on the personhood of a fetus.

Congress reintroduces the Life at Conception Act, which seeks to establish personhood from the moment of fertilization.

In June, 25 members of the U.S. House of Representatives introduce a resolution, “Acknowledging that Unborn children are Legal and Constitutional Persons who are Entitled to the Equal Protection of the Laws.”

Montana joins the growing list of states that issue “Certificates of Birth Resulting in Stillbirth.” As of this writing, 43 states issue such certificates.

The South Carolina Senate rejects a bill that would have banned abortion starting at conception.