The Problem With "Fetal Rights"

Back here, I wrote about a rather obscure bill introduced in Parliament by an equally obscure Alberta back-bencher.

Most troubling in the bill is the use of the term "unborn child". This is a very loaded term, and a misleading term as well. Just what is an "unborn child"?

Consider the biology of mammal gestation processes. Fetal development goes through a bunch of different stages, and it is far from clear to me that the term "unborn child" accurately represents these stages - especially when a woman may not even be aware that she is pregnant during some of the earlier phases.

By using the term "unborn child", the law attempts to side step the rather difficult, thorny issue of actually defining the biological state at which the "unborn child" is recognized in law. At one extreme, we find the argument that says that the rights of the "unborn child" must be recognized immediately upon the moment of conception, at the other end of the spectrum, the argument could equally be made that those rights would only apply if the "unborn child" was mere hours away from being born.

There's a whole range of possibilities in between - stages of development that are well documented and are becoming better and better understood as time goes on.

However, the whole notion of "fetal rights" is troubling. A fetus is unable to express its desires with respect to 'rights', which leaves the enforcement of those rights to arbitrary third parties acting on their behalf. Perhaps even more troubling is the implication of trying to distinguish the fetus from its mother. While that fetus will (barring accidents such as miscarriage or fatal genetic defects) will become an independent creature in its own right, we cannot ignore the absolute dependence of that fetus upon its mother for survival. Short of radical medical intervention, it's quite late in the gestation process that the fetus can survive outside of its mother's body for any length of time.

To attempt to treat that fetus as "distinct" from its mother creates a nasty little situation where arguably, the mother's uterus becomes a "condominium" of sorts that is "leased" to the fetus. Once we do that, we have created a serious legal status problem for the woman who is faced throughout pregnancy with a huge number of moral and ethical decisions at every step - now suddenly we raise the very serious spectre of what legal status is conferred on the child that she must also consider.

At what point does one deem the "rights" of the fetus to override the rights of its mother? How many legal grey zones do we introduce by making such an acknowledgement?

More significantly, in light of the societal pressures that are placed upon pregnant women, are such legal recognitions necessary? Society already places an enormous burden upon young women when they become pregnant, and most go to amazing lengths to protect the child growing within.

While I can appreciate the notion of a crime committed against a pregnant woman carrying a much harsher sentence because of its impact upon both the expecting mother and the child, I would much prefer that the legal structure continue to recognize the unique state of a pregnant woman, rather than attempting to confer legal recognition upon the fetus prior to being born. There are simply far too many ways that such recognition can be warped into what feminist writers in the United States are beginning to call "Womb Control". (E.g. South Dakota's recent ban on abortion).

When we begin to talk about "the rights of the unborn", we open a very complex, and nearly undefinable set of issues. Not only do we have the bubbling challenge of defining what those rights might be, but we have to factor in those rights in the context of the mother's rights. The utter dependence of a fetus upon its mother's support creates a serious, and possibly unresolvable tension in the legal framework. Once you create a legal distinction between a pregnant woman and the child she is carrying, you open up to a world of potentially nasty little issues that may well be intractable.

In fact, Benoit's bill touches upon one of those issues. In the "not a defence" exclusions list we find this: "(b) the accused did not know that the person was pregnant;". Consider this for a moment. Based on this, a woman could be accused herself of assault on her 'unborn child' if she engaged in a risky activity and the child was injured or killed as a result - even if she was not aware of her status as pregnant at that time. Yes, it takes a bit of a twist of logic to make this happen, but it is conceivable that a particularly zealous person (e.g. Calgary's Michael O'Malley) could pursue such a case in an effort to expand the legal recognition of the fetus as a separate and distinct legal entity from its mother.