Judge Rules a Fetus Has Legal Rights, Appoints Conservator For Her; Fetal-Rights Concept Recognized in 60s; Now Threatens Rights to Abortions
A Fetus Has Legal Rights
WASHINGTON, D.C. (December 7, 2022) – A judge has ruled that a fetus has legal rights, and has appointed a conservator to protect those rights from financial agreements being entered into by a pregnant wife and her husband which might impact them.
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But the principle that a fetus has legal rights entitled to protection, and can be represented long before birth by an attorney, was being established long before that, says public interest law professor John Banzhaf, who wrote about several such cases in the mid 1960s.
He is also the author of a more recent legal piece which explains how the concept that an unborn fetus can be represented by a lawyer, and that a lawyer may also sue a doctor and others on behalf of a fetus no longer alive for the damages it suffered from being aborted, is now threatening reproductive rights after the Supreme Court ended constitution protection for abortion rights, even in states which support the right to an abortion.
Although this judge's ruling occurred on the law-themed TV program "The Good Fight" [Season 6, Episode 5] it is not unlike actual cases which have recently occurred, and an actual request now pending before the U.S. Supreme Court asking that the justices formally recognize such rights, says Banzhaf, who has won over 100 sex discrimination cases, and several ground-breaking Supreme Court decisions.
On "The Good Fight," fictional lawyer Diane Lockhart and other attorneys on both sides had agreed on certain financial arrangements between the husband/father and the wife/mother of a female fetus.
Nevertheless, after hearing legal arguments, the pro-life judge nevertheless determined not only that the fetus had legal rights, but that it was necessary to appoint - over the objections of both husband and wife - another attorney to represent the financial and other legal interests of the unborn child.
Although this case, and this judge's decision, is only fiction, it is solidly based on earlier actual judicial rulings, says Banzhaf, who cites these as examples:
- In Zepeda v. Zepeda (1964), an adult was permitted to sue his father for a tort allegedly committed upon him at about (and perhaps even before) the moment of his own conception.
- In Amadio v. Levin (1985), the Supreme Court of Pennsylvania held that a child which was stillborn as a result of prenatal injuries could sue the mother’s obstetricians on his own behalf; in effect recognizing that a fetus enjoyed a separate legal existence independent of the mother even before its birth, and could therefore sustain - and sue for - his own injuries.
- In Didonato v. Wortman (1987), the North Carolina Supreme Court held that the word “person” in the state’s civil Wrongful Death Act includes a fetus, so that a valid legal action could be brought against the doctors allegedly responsible for the injuries to a viable but then unborn child.
- In Coveleski v. Bubnis (1993), the court announced that “we joined the majority of jurisdictions which recognized a cause of action for a fully developed stillborn. In so doing, we rejected our previous line of cases that limited the right to bring a cause of action to those children born alive. We found that it was illogical to permit a cause of action to be maintained on behalf of a child that survived only an instant, while denying the same right to a fully developed fetus which, prior to its demise, was capable of an independent existence.” [emphasis added]
The Right To An Abortion
Two recent judicial cases show that this principle - that a fetus prior to birth has legal rights - is alive and well, and is likely to expand now that the right to an abortion is no longer constitutionally protected.
In Arizona, Mario Villegas was permitted to establish a legal estate for the fetus, dubbed “Baby Villegas,” in order to sue doctors who had provided abortion pills to his then wife some four years earlier.
The Arizona action was based upon an earlier lawsuit by an Alabama man, Ryan Magers, who hadn’t wanted his ex-girlfriend to have an abortion. He persuaded a probate judge to appoint him as a representative of the estate of the aborted fetus so that he could then file a wrongful death lawsuit against those involved.
Although the Alabama lawsuit was eventually dismissed, it - like other similar lawsuits - can nevertheless cause very serious consequences for those who have been sued, including the stress and expense of being forced to defend themselves. For example, the doctor sued for prescribing abortion pills in Arizona had her annual medical malpractice insurance rate more than double from $32,000 to $67,000.
It's important to note that these cases, and presumably others like them such as the fictional Good-Fight litigation, can even be brought in states which support abortion rights, and without the need for the kind of legislative approval and legal support provided by so-called fetal personhood laws which have been attacked and condemned in many venues. For example,
WASHINGTON POST
“The next battleground in the fight over abortion rights in the US” since fetal rights laws grant a fetus the same legal rights (including to life) as a person.
BOSTON GLOBE
Fetal rights could “upend the meaning of equality under the law,” and deny states “the authority to allow abortions in cases of rape or incest.”
NEW YORK TIMES
"Fetal personhood, which confers legal rights from conception, is an effort to push beyond abortion bans and classify the procedure as murder. . . . anti-abortion activists are pushing for a long-held and more absolute goal: laws that grant fetuses the same legal rights and protections as any person.
So-called fetal personhood laws would make abortion murder, ruling out all or most of the exceptions for abortion allowed in states that already ban it. . . . They have the potential to criminalize common health care procedures and limit the rights of a pregnant woman in making health care decisions.
The U.S. Supreme Court decision returning the regulation of abortion to the states has opened new interest in the laws, and a new legal path for them."
Georgia already has a law (House Bill 481) which grants personhood (the same rights as human beings) after around six weeks of pregnancy. Five other states have already passed fetal personhood laws, but three were struck down or are now enjoined by courts.
Alabama’s voters adopted a constitutional amendment which protects fetal rights. Under it, women who use certain drugs during pregnancy can face up to 99 years in prison, and at least 20 women have faced the harshest possible criminal charges when they used drugs and then suffered pregnancy loss.
For nearly 20 years, Texas has also afforded fetuses legal rights when it comes to criminal cases. The Texas Penal Code was updated in 2003 to identify an “unborn child at every state of gestation from fertilization until birth” as “an individual” for cases of murder and assault.
That law has been upheld by Texas’ highest criminal court of appeals, allowing the state to prosecute individuals who cause the “death of or injury to an unborn child.”
So, once again, it appears that truth can be stranger than fiction, and that what is only fiction today can often become tomorrow's reality, says Banzhaf, who noted that law suits and other legal actions can often have an important effect on public policy, even if not supported - or even if opposed - by legislation.
