Your Friday Firestorm: Is a Fetus a Person?

In England there is something called the Criminal Injuries Compensation Authority (CICA). If I am injured as a result of a criminal act I can claim for compensation from CICA. This is possible because I am classified as a “person” according to the Offences Against the Persons Act 1861.

A girl is currently seeking compensation from CICA because of what her lawyers believe were criminal injuries inflicted on her by her mother . . . when she was a foetus. Her mother drank half a bottle of vodka and eight cans of strong lager a day during pregnancy. The girl’s injuries are on the spectrum of foetal alcohol disorder.

The High Court is currently having to decide whether:

A. A fetus is a person; and

B. Whether drinking excessive alcohol in pregnancy constitutes a criminal act.

The ramifications for the legal status of a foetus (and its implications for abortion law) and the potential criminalisation of pregnant woman who abuse alcohol or drugs are potentially very interesting. How would you rule?


  1. 1.

    A fetus is not a person.

    We don’t count them in the census. They don’t qualify for tax exemptions. They aren’t charged admission to events. They can’t inherit. They don’t get passports.


    If a fetus were a person, which it isn’t, how can its mother be charged with a crime for harming it by drinking, but not be charged with murder for aborting it?

  2. Fetal personhood is a legal land mine that would do a lot more harm than good. Just to hit the obvious, fertility treatments would become criminalized acts.

    Current estimates suggest that roughly 40% of all pregnancies self terminate (miscarry). The vast majority of these terminate because they fail to develop properly. The remainder usually fail because the mother’s hormonal chemistry can’t provide an environment suitable for the fetus. These are biological conditions, and fetal personhood would entitle each of those miscarriages to an investigation to establish culpability of the parents.

    Regarding criminalizing drug and alcohol use in pregnancy, every physician I have talked to hates the idea. I helped to design the database for tracking my hospital’s fetal alcohol babies for state required reporting this year (I work for the 4th ranked Ob/Gyn department in the country, boasting over 10,000 deliveries per year). The characterization of drug abusing moms I got from physicians is that, by and large, they are willing to tell their doctors about their drug use because a) they want to quit for at least the duration of the pregnancy, and b) they trust that admitting use to their Ob won’t land them in legal trouble.

    Fetal personhood would crush that trust, lead to expensive prosecutions, and rarely actually deter use. If the use is kept secret, it will just mean more babies each year being born addicted to drugs and alcohol. The costs of these babies emotionally, physically, and financially is astronomical.

    Politicians out to make a name for themselves would do well to let the doctors treat medical conditions. Human beings would do well to be generous to and supportive of children born with fetal alcohol and addiction syndromes.

  3. cookie queen says:

    It renders me speechless actually.

  4. Was there a law on the books making it illegal to drink while pregnant. In the US I’m pretty sure it would be unconstitutional to retroactively decide that drinking while pregnant was a criminal act if there wasn’t a law in effect at the time.

    Could they avoid the personhood question altogether by saying the act wasn’t illegal, so the question of personhood is irrelevant?

  5. This is not a Friday Firestorm! I will, however, sit idly by as others abuse my intellectual property rights in this matter.

  6. Tennessee recently amended its criminal law: now, if a baby is born addicted to or harmed by narcotics that the mother used while pregnant, the mother can be charged with assault.

    It’s a bad law, and I suspect it’ll ultimately be found unconstitutional (though I’m a tax attorney, not a con law guy, so take my predictions with a large grain of salt). It’s also not exactly the same thing: narcotics are already illegal, and you probably don’t have to have legal personhood to support a charge of assault (I assume, because in many states, assaulting a pregnant woman can lead to steeper charges—as a result of the fetus—than merely assaulting an unpregnant person).

    Ultimately, though, as Benjamin points out, criminalizing drinking or drug use during pregnancy will harm more babies than it helps, as it will discourage people from seeking prenatal care.

  7. What Benjamin said, word-for-word.

  8. John Mansfield says:

    The legal status of a seven-year-old suing her mother also seems dubious. The seven-year-old isn’t suing anyone; the local agency caring for her is suing, using her name to help out its budget. Are local agencies proxy people?

  9. Nothing dubious about that part of the issue at all, John Mansfield. Any person who is incompetent to sue by himself/herself may sue by a guardian or other legally competent person authorized to act for him/her. Whether the social service agency are “proxy people” is irrelevant.

    That of course doesn’t speak at all to the question RJH raises. Did the mother’s actions cause the child harm? I think the medical science is clear on that. Would criminalizing (or criminalising, since we’re in the UK) the mother’s actions make any difference in future cases? Probably not. Would calling a fetus a person result in huge numbers of investigations/prosecutions in cases of miscarriage? Highly unlikely, despite the 40% number Benjamin cites. (Which is, by the way, about 15 percentage points higher than the numbers others use.) The overwhelming majority of those miscarriages happen so early in pregnancy that the woman may not even know that she was pregnant.

  10. Lawfullness does not equate to morality. Laws are arbitrary and immoral in themselves quite often. Laws don’t protect people they just punish the guilty. My question would be how would punishing alcoholics and drug addicts help the babies born into these families? It would still be immoral to harm the unborn regardless let’s just add prison time to let that guilt sink in. I believe especially as Mormons we need to stop focusing on what is legal and remember that which is moral.

  11. It’s not that simple. Wasn’t there a law passed ten or twelve years ago designating a fetus as a person in cases of assault, if the child is injured or killed? It doesn’t apply to a woman’s act against her own unborn child, but it does allow for a fetus to be defined as a person in some circumstances not others. Morally problematic, but legally sound.

    I could see this being a problem for civil, but not criminal law. Why shouldn’t someone be allowed to seek recompense for a lifelong disability inflicted by his or her parent in utero or while dependent? Maybe that’s where the line can be drawn.

  12. I know that in Utah, DCFS can get involved, and possibly take the child into state custody, based solely on fetal drug exposure by the mother. Is this not the case throughout the USA?

    And I dimly remember from my law school days that if you murder a pregnant woman, in most American jurisdictions you can be charged with two homicides, not just one; and that if you injure a pregnant woman in such a way as to end the pregnancy against the mother’s wishes you can be held civilly liable in a wrongful death tort.

    American jurisprudence has shown, over the last forty years, that we can live with the inherent contradictions of a legal paradigm where we retroactively decide whether a fetus was a “life” based on a) whether the fetus is lucky enough to survive the birthing process in spite of a third party’s best efforts, and b) whether the mother really wanted the fetus at all.

  13. “Wasn’t there a law passed . . . ”

    Probably somewhere. Such a law (in the U.S.) would be a state law, so you’d have to ask whether such a law was enacted in your state.

  14. Question about the British law: Does someone recover from this fund only when injury is the result of an act for which someone could be arrested, tried, and imprisoned? Or does it cover negligence or no-fault injuries? (E.g., you could recover if a thug pushed you in front of a bus while he was wrestling your briefcase from you. Could you recover for the same injuries if the bus couldn’t stop because of negligent maintenance or because of an unrecognized design flaw in its new braking system?)

    I’m wondering if it’s possible to help someone cope with the affects of fetal alcohol syndrome without punishing her mother as a criminal (which, as has been said, would affect the mother’s willingness to seek help, and might encourage abortion rather than risk a living child who could be used as evidence in a crime). Or does that just dilute CICA to the point of meaninglessness?

  15. “And I dimly remember from my law school days that if you murder a pregnant woman, in most American jurisdictions you can be charged with two homicides, not just one; and that if you injure a pregnant woman in such a way as to end the pregnancy against the mother’s wishes you ”

    The key phrase there is “against the mother’s wishes.” In such cases, the injured party is the mother, not the fetus. And the injured party’s losses include the fetus. (at least, that’s my coarse understanding of it)

  16. no. This is too closely aligned with the personhood movement. My views on the complexity of life/conception and the legal and moral ramifications (rape, aborthion, embryonic stem cell research, etc) changed during our IVF cycle. Not only was IVF invented on the back of embryonic medical experimentation, we had complications during our cycle and back then experimental oocyte cryopreservation was our only chance to save 31 eggs. After the thaw they were all fertilized and only one embryo “survived” for implantation. At the time my daughter was less than 100 babies ever born from o.p. I’ve been called a baby killer by the far right (back when I lived in Iowa and was a political blogger) for the destruction of 30 embryos.

    There is a clear line with life=birth. The only other rational way to interpret life is either at embryo stage or implantation (which gets murky). Both of which are nightmares on any reasonable level. Attempting a fetus definition is even worse.

  17. JimD is correct in his recollection.

    Fetal homicide – where an assailant can potentially be charged with two deaths rather than one if the woman killed was pregnant – are on the books of 38 States and at least 23 of them have laws that apply to the earliest stages of pregnancy. In these laws personhood for the fetus is established under certain parameters.

    This is not a small

  18. Sorry, remaining comment was supposed to be this is not a small or uncomplicated question.

  19. My understanding is that it is not normal for people to win lawsuits for negligent parenting. A child likely wouldn’t win a lawsuit against their parents for exposure to secondhand smoke, even though it carries a high risk of long-term health effects. I have a difficult time seeing why a child would win an argument for injuries from negligent parenting as a fetus (if someone were to declare the fetus as a person, which is also up in the air).

  20. I used to date a girl with a bad case of fetal alcohol syndrome. What her mother did was certainly criminal – subjecting her daughter to a lifetime of disabilities, deformities, and pain. The mom drank through pregnancy, then drank the guilt for the next 25, until she died from alcohol-related diseases.

    If I were king for the day, I’d try to come up with something along the lines of making drinking during pregnancy a criminal act, provided said mother made no efforts to get help. If you don’t consult your doc or make some other attempt at sobriety, then we throw the book at you.

    And Gail, if you’re out there, the sign language skills you taught me have served me well, even if I’m out of practice.

  21. Mark B.—No, it was a federal law….The one JimD and Benjamin referred to. The 2004 Unborn Victims of Violence Act, according to a brief Google.

    We could always use the same laws that define life at the end of it: brain activity. That would mean a fetus qualifies as alive at around 25 weeks.

  22. The key phrase there is “against the mother’s wishes.” In such cases, the injured party is the mother, not the fetus. And the injured party’s losses include the fetus. (at least, that’s my coarse understanding of it)

    Precisely. It’s “alive” if, and only if, the mother says it’s alive.

  23. Personhood always deals with a number of very fine lines, most of which can be easily misinterpreted to do things they never intended. For example, how far is the step from suing a mother who drank during pregnancy to suing a mother who drank without knowing she was pregnant, to making it unlawful for any woman to drink if there is any possibility of her being pregnant? How far is the step from suing someone intentionally doing something that unintentionally causes birth defects to suing someone with the potential to pass on birth defects who intentionally created a fetus that could have these birth defects, to making it unlawful for people with certain genetic markers to procreate?

    Certainly don’t envy those who have to navigate such treacherous waters.

  24. I am thankful that Mormonism has a flexible and wise enough theology to avoid the need for making embryo’s people. It would be devestating to see it thrown under the bus in service of what is largely a political convenience for the far right.

  25. “what is largely a political convenience for the far right.”

    Do you really thing the right’s concern with abortion is largely political convenience? It makes me sick just thinking about it. It’s like unto murder in my mind. What a callous rejection of your brothers and sisters who are concerned about newly developing, innocent life and you instead see a people trying to acquire and maintain power?

  26. DQ

    No I don’t think oppostion to abortion is a political convenience for most who oppose it. I do think that “personhood” as a strategy however is. Personhood goes so far beyond opposition to abortion and it has been used, in my opinion cravenly and cavelierly, by some of the most ideologically zealous but unscupulous elements of the far right. Also, observing the political far right operate I would caution anyone that if abortion and other moral issues are their sincere voting interests to be very, very careful about having those used by those ” who draw close to you with their lips but whose heart is far from you”. I think there is pretty compelling evidence that many of the political operations that use abortion, gay issues and others to mobilize voters often use them cynically. I am sure that the same type of political manipulation exists on the other side of the aisle to, often just on different issues.

    More generally, I am very concerned about the influence that our religion’s increasing grassroot and institutional ties to the political apperatus of the far right/evangelical right. I think we like to think that somehow the influence travels in one direction, that we as a church might influence politics on some issues, but we would be well cautioned to note that the political organizations and interests are very powerful. They have the ability to invade our culture, our theology and our communities. And lets be clear. Those political organizations don’t have our interests at heart. They want to win and win mostly by any means neccesary. Look at the political organizations we got into bed with during Prop 8. They produced rank homophobic adds using children, fear, lies and scare tactics. We were part of a coalition but those adds, messages and tactics were spread throughout our church with members using them while knocking on doors, identified with the organizations running those adds etc. Certainly the church wasn’t directly responsible for those adds and messages though we did help fund them. But that is the point. The political organization in playing the bare knuckle tactics of politics inundated our community, culture and church. Its was a natural consequence with who we allied ourself with. Now it is the World Congress of Families. This would be less a problem at the macro level if there was any signficant political diversity left in our communities. We now know that we are the single most politically homogenous religion in the entire United States. That concerns me. It would concern me if we were 90% Democrats too, frankly.

  27. Is a fetus a person? At some point the answer is yes, although legally it is mostly no. Doctors, theologians, and even lawyers may all have a different opinion as to when.
    In the US, the personhood amendment is the political overturning of legal abortion through a constitutional amendment. I do not think that there is any doubt about this among supporters. Many of those vociferously opposed, make the argument that all abortion would be illegal, even the statistically few cases that have high majority backing for legality. These could not be legalized with the personhood amendment passed. It is the flip side of the current pro-life argument against the 1973 high court ruling.

    There is nowhere near majority support for this position in the US, it is a dead issue to become a constitutional amendment. I have never heard any church leader discuss this political issue, even where I live in a conservative area of a very conservative state. I have heard some disagree with the church’s public position on immigration issues, but that is it. Perhaps being far away from CA insulated me from the Prop 8 political mud. It seems that the church came away looking saintly (for the most part) while the hard core opponents looked petty, vindictive, and unchristian. I would rather hang with the side the church seems to favor, especially at the local grass roots level.

  28. el oso,

    Yes personhood is politically non-viable. What is used for is sticking amendments on the ballot largely to whip up a certain part of the base to get them to turn out on election day so that it provides some extra momentum for a broad array of GOP candidates. At least that is how the savvy political strategist see it. It is precisely because it is so non-viable that I call it largely “a political convenience of the far right”. They use it as a hot button issue and whip up the emotion under false pretenses. Welcome to hard knuckle politics where almost any ends justify the means.

    Staying far away from the “political mud” in Prop 8 advised. The church tried to provide PR cover by going through coalitions but a vast amount of the money backing ads and a lot of ground game was strongly Mormon. It is all pretty well documented. It is up to you to screen the ads that came out backed by church-solicited funds and decide whether you find them morally problematic. Or just don’t and gracefully let it fade into history.