Fetal rights

Moral or legal rights of the human fetus

Fetal rights 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. The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder. Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." While 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 several countries.

In antiquity, the fetus was sometimes protected by restrictions on abortion. Some versions of the Hippocratic Oath indirectly protected the fetus by prohibiting abortifacients. Until approximately the mid 19th century, philosophical views on the fetus were influenced in part by Aristotelian concept of delayed hominization. According to it, human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human. The law, however, allowed for the postponement of the execution of sentenced pregnant women until a baby was delivered. 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. The property law of the Roman Empire granted fetus inheritance rights. 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. 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". The Digest granted the fetus consanguinity rights, vesting the protection of fetal interests in the praetor. The Digest also prohibited the execution of pregnant women until delivery. 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. 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. On that basis it is believed that Greeks and Romans were not aware of the fetal alcohol syndrome. 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. 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 the act of parliament to avoid potential squabbles among loyal descendants of his lineage. 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. In 1536, the British Parliament gave the unborn children of Henry VIII and Jane Seymour precedence in the line of royal succession. 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. 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. 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. The fetus was thus considered a person for purposes of inheritance. 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". 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". 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. The 1980s witnessed the reappearance of fetal protection in the workplace, aimed at guarding fetal health in potentially hazardous working conditions. 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.

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. 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 ) 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. While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person. 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. Such conflict is sometimes called maternal fetal conflict. Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus. 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. At the same time, ICCPR prohibits the execution of pregnant women. 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". The Dublin Declaration on Maternal Health, 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". Several organizations, such as World Health Organization (WHO) and Human Rights Watch prioritize women's reproductive rights over fetal rights. 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. 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). 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. In English common law, fetus is granted inheritance rights under the born alive rule. (some Shiite jurists believe the ensoulment occurs after 11 to 14 days, during the implantation of the fertilized egg in the uterine wall). 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. 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.

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 project of bill, that would limit the liberty of 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 was cosidered as controversive and making errosion of female's autonomy and liberty. 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. 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. No 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 criminally prosecuted or arrested under existing child abuse statutes for allegedly bringing about harm in utero through their conduct during pregnancy. 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.