Fetal rights or foetal rights (alternatively prenatal rights) are the moral rights or legal rights of the human embryo or fetus under natural and civil law. The term fetal rights came into wide usage after Roe v. Wade, the 1973 landmark case that established a constitutional right to abortion in the United States; that decision was overturned in 2022 by Dobbs v. Jackson Women's Health Organization. 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 most 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 some countries.
Because a fetus develops within another person's body, the recognition of fetal rights raises the question of how those rights relate to the rights of the pregnant woman, discussed in legal and bioethical literature as maternal-fetal conflict. The American College of Obstetricians and Gynecologists holds that pregnancy is not an exception to a patient's right to refuse medical treatment and opposes forced and court-ordered obstetric intervention. A peer-reviewed study of the United States identified 413 cases between 1973 and 2005 in which a woman's pregnancy was a necessary factor leading to her arrest, detention, or a comparable deprivation of physical liberty.
Terminology Some jurisdictions assign rights before the fetal stage proper. In Italy, embryos are treated as subjects of law from fertilisation, including before implantation where fertilisation occurs in vitro.
The terminology of the field is itself contested. Fetus is the standard clinical term for the stage of prenatal development beginning around the ninth week of gestation, while unborn child predominates in political and legislative usage. Examining the latter phrase, the bioethicists Laurence B. McCullough and Frank A. Chervenak distinguished its descriptive from its normative uses and argued that its normative content does not establish the independent moral status of the fetus or a fetal right to life; they proposed that the concept of the fetus as a patient, carrying dependent rather than independent moral status, should replace normative use of unborn child. The article appeared with several open peer commentaries disputing both the distinction and the conclusions drawn from it.
History
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. Relying on examinations of miscarried fetuses, Aristotle believed that male fetuses acquire their basic form at around day 40, and female ones at day 90. For Pythagoreans, however, fetal life was co-equal in moral worth with adult human life from the moment of conception; similar views were held by Stoics. Ancient Athenian law did not recognise fetal right to life before the ritual acknowledgement of the child. 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. Even though under Roman law the fetus was not a legal subject, it was a potential person whose property rights were protected after birth. Roman jurist Ulpian noted that "in the Law of the Twelve Tables he who was in the womb is admitted to the legitimate succession, if he has been born". 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 inheritance rights of the fetus were 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 herself could be appointed the custodian. 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. At the same time, Greek and Roman sources do not mention issues of alcohol consumption by pregnant women. On that basis it is believed that Greeks and Romans were not aware of the fetal alcohol syndrome.
After the spread of Christianity, an issue emerged: whether it was permissible for a pregnant woman to be baptised before childbirth, due to uncertainty as to whether the fetus would be cobaptised with its mother. The Synod of Neo-Caesarea decided that the baptism of a pregnant woman in any stage of gestation did not include the fetus. 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. After the death of Albert II of Germany in 1439, his then-unborn son Ladislaus the Posthumous inherited his father's sovereign rights. 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. Similarly to the Roman law, the Napoleonic Code envisaged that if a woman becomes a widow, a male guardian should be appointed for her unborn child.
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.
Modern regulations 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. However, only a minority of state ratifiers completely prohibit abortion without allowing for an exception when the pregnant woman's life is in danger (Dominican Republic, El Salvador and Nicaragua).
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. The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC. 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 Healthcare, 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.