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Legal Personhood #2: The Foetus and Pregnant Persons

Welcome to the second blog post in a series on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests. Today’s post is written by Hannah Robert, Lecturer, who researches and writes about legal parentage and genetic paternity, and about criminal law’s response to violence against pregnant women resulting in stillbirth.

Hannah pregnant 2012

Consider a pregnant woman sitting opposite you on the train. In the eye of the law, is she one person or two? If you’re a doctor and she’s your patient, do you need one lot of informed consent or two? And if an assailant attacks her and she survives, but suffers injuries which result in miscarriage or stillbirth, should her foetus be defined as a ‘person’ for the purposes of particular offences, as the controversial ‘Zoe’s Law’ bill in NSW recently sought to do?

The common law’s traditional answer is that a foetus is not a legal person until it is born alive and can be considered a ‘reasonable creature in rerum natura’ (Coke, Institutes, Part III, Ch 7, 50 cited in Barry, 1941: 353). Once a baby is born alive, rights arising from things that occurred while in utero can crystallize – for example, rights in tort, if an injury was sustained in utero, or inheritance rights if a testator died during the pregnancy. But for babies stillborn due to criminal action, such as Brodie Donegan’s daughter Zoe, or Byron Shields who died in utero when his mother was hit by a road-rage driver, legal personhood never crystallizes, and current law categorises their loss as an injury to the mother. For some grieving family members, this feels incomprehensibly arbitrary, with Byron’s grandmother Terry remarking that “[t]he law plays now you see him now you don’t” (King, 2995: 31). The magical transition here is birth – but is it truly arbitrary to make separate legal personhood dependent on separate physical existence from the mother?

Kristin Savell suggests that any sense of arbitrariness fades once we broaden our inquiry – to look beyond just the intrinsic qualities of the foetus (such as gestational age or viability) and to remember that this foetus is not (despite the ultrasound imagery) floating free in space. It is within a particular woman’s uterus, beneath her abdominal muscles, skin and clothing, as she sits opposite you on the train. As Ashe (1988: 551) notes:

Even to speak of the pre-birth period as one of mother-child ‘interdependence’ does not begin to do justice to the experiential reality of pregnancy as a state of being that is neither unitary nor dual, exactly; a state to which we can apply no number known to us.

Savell argues that live birth is substantively significant because it is the moment when the child acquires an “individuated form of embodiment” (2006: 660) – its own separate existence, able to interact with others directly, unmediated by the mother’s body and legal personhood. Taking into account the reality of pregnant embodiment also enables us to see that there are in fact two questions about legal personhood here. Not just ‘Should we extend the rights of separate legal personhood to the foetus in utero?’ but also ‘What happens to the legal personhood of a pregnant woman if her foetus is treated as a separate legal person?’

A growing number of other jurisdictions (particularly in the US) have legislated to overturn the born alive rule, with some very concerning outcomes for pregnant women’s legal personhood. For example, in Indiana in March this year, Purvi Patel was sentenced to a non-parole period of 20 years imprisonment for feticide and child neglect after she sought medical help following a miscarriage. “Heavily bleeding, she informed staff she’d had a miscarriage and, in a panic, disposed of the stillborn foetus in a garbage bin”. Also in Indiana, Bei Bei Shuai was prosecuted for feticide and murder after she attempted suicide while pregnant and her baby died after birth due to the effects of her suicide attempt. In Utah, in 2004, Melissa Rowland was charged with murder for refusing a caesarean, when her baby was subsequently stillborn. In Wisconsin in 2013, when Alicia Beltran at 14 weeks pregnant disclosed to her doctor that she had had a pill addiction the year before, but was now drug-free, she was involuntarily detained for compulsory drug treatment. In each of these situations, women’s decisions or actions regarding their own (pregnant) bodies were criminalised, undermining their bodily autonomy and their rights as legal persons.

These two questions, then – legal personhood of the foetus, and legal personhood of the pregnant woman – are intimately linked. As long as law insists on legal personhood as a unitary state, any recognition of foetal legal personhood ‘correspondingly devalues the mother’s legal personhood’ (Bennett, 1991). A more realistic approach perhaps is Isobel Karpin’s notion of pregnant woman and the foetus as ‘not-one-but-not-two’ – so that the foetus is not ‘nothing’, but also not a full legal person (Karpin, 1992). Given that the advocates of Zoe’s law have indicated they are keen to make another attempt to change the laws regarding criminal charges laid where criminal acts result in stillbirth, these are issues which Australian law makers and legal scholars are likely to be facing again very soon.

Bibliography

Ashe, Marie, ‘Law-Language of Maternity: Discourse Holding Nature in Contempt’ (1988) 22 New England Law Review 512

Barry, J, ‘The Child en Ventre sa Mere’ (1941) 14 Australian Law Journal 351

Bennett, Belinda, ‘Pregnant women and the Duty to Rescue’ (1991) 8 Law in Context 85

Fovargue, Sara, ‘The Law’s Response to Pregnancy and Childbirth: Consistency, Conflict or Compromise? Review of Childbirth and the Law by John Seymour’ (2002) 65 Modern Law Review 290

Karpin, Isabel, ‘Legislating the Female Body: Reproductive Technology and the Reconstructed Woman’ (1992) 3 Columbia Journal of Gender and Law 325

King, Madonna, ‘Hearts and Minds Shape Laws’ The Courier-Mail (1 October 2005)

Robert, Hannah, ‘The bereavement gap: Grief, human dignity and legal personhood in the debate over Zoe’s law’ (2014) 22 Journal of Law and Medicine 319

Savell, Kristin, ‘Is the ‘born alive’ rule outdated and indefensible?’ (2006) 28 Sydney Law Review 625

Suggested Citation

Hannah Robert, ‘Legal Personhood #2: The Foetus and Pregnant Persons’, Law and Justice, 22 April 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)

Marc Trabsky

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