FETAL PROTECTION LAWS AND THE "PERSONHOOD" PROBLEM: TOWARD A RELATIONAL THEORY OF FETAL LIFE AND REPRODUCTIVE RESPONSIBILITY.

• Author: Gvozden, Amanda

INTRODUCTION 409 A. Theoretical Intervention: Relationships, Rights, and 411 Responsibilities B. Argument and Structure 413 I. THE HISTORY OF PERSONHOOD AND FETAL RIGHTS 414 II. FETAL-MATERNAL IDENTITY AND DISTRIBUTIVE JUSTICE: RELATIONAL 417 THEORIES OF IDENTITY AND CARE A. Pregnancy, Relationality, and Care 418 B. Fetal-Maternal Identity Theory 421 C. Reconsidering and Redistributing Responsibility 423 III. FETAL-MATERNAL IDENTITY SOLVING PROBLEMS IN PRACTICE 426 A. Maternal-Fetal Antagonism, Policing Pregnancy, and Problems 426 in Maternal-Fetal Harm B. Problems Solved by Redistributing Responsibility 430 1. Social Assumptions about Care and Maternal 431 Responsibility 2. Relational Responsibility for Health and Safety 432 3. Distributive Justice, Revising Systems and Providing 434 Support IV. RESPONDING TO POSSIBLE CRITIQUES 434 A. Defining Human Life 435 B. Increasing Harm and Preventing Intervention 435 C. Threat to Abortion Rights? 435 D. One Less Protection 436 CONCLUSION 437 INTRODUCTION

Personhood is a foundational element of the American legal system. (5) To be imbued with rights or encumbered with duties, an entity must first be identified as a "legal person." (6) To this end, much legal and philosophical work has gone into making sense of exactly what a "legal person" is. (7) One significant question in this debate relates to the legal status of non-human persons. Animals are afforded some degree of legal rights, but are they persons? Since Santa Clara County v. Southern Pacific Railroad Co. (8) there have been serious questions about the legal personhood of corporations. (9) But one status in question--that is the subject of some of the most intense debate--is the legal status of fetuses. Are fetuses legal persons? Do fetuses have rights?

Some states have chosen to answer this question explicitly by granting fetuses rights through Fetal Protection Laws (FPLs). (10) These laws variously grant fetuses rights, (11) define fetuses as persons, (12) and provide extra protections to pregnant women unavailable to non-pregnant persons. (13) Beyond merely granting fetuses legal rights, FPLs have other secondary consequences on the rights of the women. (14) General Fetal Protection Laws (GFPLs) (15) have, by granting fetuses separate rights, placed women in an adversarial relationship with their fetus. (16) This has meant, in some cases, that women have been held criminally responsible for injury or death caused to their own fetuses. (17)

Some FPLs already have exemptions that are meant to preclude women from prosecution of harm to their own fetuses. (18) However, even for laws that explicitly state that they should not be used to the detriment of pregnant women, such as California's FPLs, (19) recent cases have been brought against women for harm caused to their own fetuses. (20) The emergence of these new cases in states that have enacted specific language protecting pregnant women is of great importance and immediate concern. How is it that states that have explicitly attempted to alleviate the dangers caused by FPLs are still using FPLs to target and punish pregnant women for harm to their fetuses? This Comment proposes that the impossibility of overcoming the personhood problem in FPLs is the reason that even the best-intentioned states cannot avoid unjustly prosecuting women for their own pregnancies. FPLs that attach rights to fetuses as separate persons create the inescapable problem of legally protecting those persons against harm with retributive justice. (21) Once an entity is afforded independent rights and defined as a person, it becomes nearly impossible for the state not to punish those who harm it, through whatever means and regardless of their relationship. Language that specifics the identity and rights of the fetus might help. But in reality, exempting women from this sort of prosecution is not beyond what state laws largely already provide in their own language.

1. THEORETICAL INTERVENTION: RELATIONSHIPS, RIGHTS, AND RESPONSIBILITIES

   One way out of this quagmire would be to declare fetuses to be non-human and non-persons. However, this engages the state in ethical and existential questions that are not only inappropriate, but in which the state has no expertise. (22) Another way of approaching this problem is by circumventing the "human" and "person" discussion and engaging instead in a conversation about relationships and responsibilities. This Comment does just that.

   Feminist theories of identity have long purported that women exist in a network of relationships rather than as atomistic, autonomous individuals. (23) The fetal-maternal relationship, they suggest, is the epitome of this sort of relational identity because of its uniquely necessary, rather than discretionary, relationality. (24) By drawing from feminist theories of identity, this Comment suggests a theory of identity that circumvents the personhood question and instead focuses on the provision of rights as part of a relational system.

   Rights should be afforded to individuals in relation to one another. Because fetuses have a necessary and constitutive relationship with the women that bear them, fetuses should only be afforded rights through the rights afforded to women, not as an independent entity. (25) A fetus is necessarily reliant on a woman for sustenance and existence. In essence, this means that, for legal purposes, the fetus is identical to the woman. (26) But because the woman is not in relationship with the fetus or dependent upon it in the same way as the fetus is her, the woman is not identical to her fetus. (27) Thus, this theory would conceive of the fetus and its mother as a new maternal-fetal person that bears rights through reference to the woman exclusively.

   In this sense, a fetus cannot claim independent rights because it does not function independently, only at the support and discretion of the woman who bears it. Rights essentially "flow through" the woman to her fetus, and fetuses are only afforded protection to the extent that the woman is protected because of this unique relationship of necessary dependence. (28)

   In this system, then, responsibility, like rights, would be distributed through a network of relations. (29) Rather than holding a woman exclusively responsible for the care of the fetus, and implicitly herself, this theory of relational identity and responsibility would insist that tertiary actors in relation to the woman be held responsible for ensuring her health and safety in a network of care. (30)

   Such a system would solve a number of problems. Women and their fetuses would no longer be antagonists because the fetus would not be a cognizable separate legal entity that could claim rights separately from and potentially against its mother. Women could not be held liable for harm caused to their fetuses because, on one hand, the fetus being identical to the mother would be merely caring for or harming herself by caring for or harming her fetus, and on the other, with responsibility made diffuse, there would now exist a network of individuals and systems in relationship who would be responsible for caring for the woman and, by extension, her fetus.

   Ultimately, this Comment does two things: it proposes a novel, alternative theory to current fetal personhood theories that is based on relationships rather than autonomous rights, and it applies this new theory to contemporary problems in the policing of pregnancy to demonstrate how a novel theory of personhood would better apprehend the reality of pregnancy and protect pregnant women.

2. ARGUMENT AND STRUCTURE

   This Comment begins by grounding the discussion of fetal personhood theory in historical context. Part II moves from the history of fetal personhood to a new theory of identity grounded in relationality. First, this Comment argues that problems caused by attaching rights to fetal persons might be avoided by circumventing the personhood question entirely, focusing instead on relationships. Second, this Comment extends this theory of relationality to explore the imposition of responsibilities as well as the provision of rights. Part III then applies this new relational theory to persistent problems in the policing of pregnancy and explains how this revised version of relational identity and responsibility will solve problems caused by the fetal personhood movement and FPLs. Part IV follows by addressing possible critiques of this theory of relational identity and responsibility.

   1. THE HISTORY OF PERSONHOOD AND FETAL RIGHTS

      The question of life arises most frequently in legislation in cases involving the destruction of a fetus. (31) At early common law, the fetus was not considered alive for somewhere between several days to several months after conception. (32) Even then, a fetus was not considered a human being and the killing of a fetus was not homicide unless the fetus had been "born alive" (33) and established an "independent circulation." (34) Indeed, the court in Dietrich v. Inhabitants of Northampton maintained that to consider a fetus as "on the same footing as... an existing person" would be illogical because no "quasi independent life" could be maintained by a fetus. (35) Ultimately, the consensus was fairly universal that only independent life could be recognized by law. (36) More recently, however, both federal and state legislation have recognized and provided legal protections for the fetus. The federal Unborn Victim of Violence Act (UVVA) of 2004 recognizes an embryo or fetus in utero as a legal victim and defines an unborn child as a child in utero, or a "member of the species homo sapiens, at any stage of development, who is carried in the womb." (37)

      Following the example of the UVVA, some states passed "Fetal Protection Laws" (FPLs) that added separate causes of action for harmed fetuses, enhanced penalties for harm done to pregnant women, and/or defined a fetus as a human life from the earliest stages...