Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to protect women from prosecution for the injury or death of their own fetus. However, in recent years, despite these explicit constraints, cases have emerged in California that do just this: prosecute women for harm to their own fetus. So why, if states are clearly exempting pregnant women from prosecution for their own injured fetuses, are such prosecutions still being undertaken? This Comment suggests that the problem lies in the fetal personhood theory now underlying these FPLs. FPLs not only provide protective rights to fetuses, but in doing so, define the fetus as a legal person. Under this framework, it becomes impossible not to prosecute the mother for harm because she and the fetus are separate legal persons with separate legal rights and protections. However, there is an alternative. Drawing from feminist care theory and distributive justice, this Comment proposes that rather than consider the fetus and the mother as separate legal entities, the fetus and the mother should be seen as one fetal-maternal entity with rights flowing through the mother. This Comment refers to this theory as the Fetal Maternal Identity Theory (FMIT). Rather than seeing the mother and fetus as independent entities, FMIT correctly recognizes the unique relationality between the fetus and its mother and reconceives of rights as incumbent upon this relationship. Because the fetus is necessarily dependent upon the mother, all of its rights, like its identity and very existence, are afforded to it through and in relation to its mother. This theory solves several problems. First, it helps to define the problem facing states that seek not to prosecute women for harm to their fetuses but find it impossible to do so. Second, it provides the foundation for a new theory of relationality that better appreciates the complex condition of pregnancy and protects women from harm and unjust prosecution. Ultimately, beyond its function, FMIT better apprehends the conditions of pregnancy and provides a well-grounded framework for redistributing responsibility.
Fetal Protection Laws and the "Personhood" Problem: Toward a Relational Theory of Fetal Life and Reproductive Responsibility,
J. Crim. L. & Criminology