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Rights of the Unborn: Personhood After Dobbs

black and white photograph of pregnant person holding stomach

Last month a jailed pregnant woman claimed that her fetus was being illegally detained after she had been charged with second degree murder during her pregnancy. A writ of habeas corpus on behalf of the unborn child in Florida’s Third District Court of Appeal was filed arguing that the “unlawful and illegal detention” of the unborn child violated its constitutional rights on the basis that the “unborn child had not been charged with any crime of the state.” It was argued that the “draconian confinement” was harmful as the unborn child was in such a proximity to violent criminal offenders. It was further claimed that the rights of the unborn child were violated due to the lack of prenatal and medical care within the jail environment, as well as being subject to transportation to the jail without air conditioning for an extended period. The petition was dismissed, and the unborn child was not afforded “personhood.”

Since Dobbs v. Jackson Women’s Health Organization, which removed the constitutional right to an abortion, anti-abortion groups have advocated for federal fetal personhood laws. These protections grant the fetus similar legal rights and immunities available to citizens. However, in doing so, the fetus and the mother are treated as separate legal entities. In the most extreme, an unborn child could possess identical rights to a pregnant person.

Georgia’s Living Infants Fairness and Equality (LIFE) Act is the first glimpse into such world. Under this law, aborting a pregnancy after the sixth week could result in criminal charges as the state considers a fetus a person at that point. (Georgia recognizes the fetus in census data, allows a fetus to qualify for tax credits, and permits mothers to apply for child support during their pregnancy.) While the Act provides an exception for miscarriages, rulings are sure to be contentious as abortions and miscarriages are treated as medically comparable.

The role of personhood within both ethics and law has been widely debated. Within ethical discussions, personhood is often described as having moral status, which guarantees a right to life and inherent dignity. In the legal system, personhood confers rights, duties, and protections.

The landmark Supreme Court case Roe v. Wade in 1973 provided a constitutional right to abortion. The lawyers representing the state of Texas in Roe argued that a fetus should be entitled to all the protections guaranteed under the Fourteenth Amendment including a right to “life.” However, the court ruled that the word “person,” does not include the unborn. Instead, it was held that personhood could not be granted to a fetus before viability — the point in which a fetus can survive outside the womb. In Dobbs, which overturned Roe, the court declined to disclose their views on fetal personhood. “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” This ambiguity, coupled with new powers allowing states to determine abortion rights, has granted license for all manner of personhood accounts to be made regarding unborn children.

What would it mean for pregnant persons if extensive personhood laws were applied to both embryos and fetuses?

Firstly, pregnant persons could be prosecuted for the death or injury of their unborn child. If personhood laws were applied to unborn children and federally recognized, the termination of pregnancies would inevitably result in criminal prosecutions. An individual may be charged with murder or manslaughter for seeking an abortion, or conspiracy to commit murder if they travel to obtain an abortion in another state.

This opens up further questions beyond the scope of abortion. For example, what would happen if an individual had a miscarriage? Would they be charged with attempted murder? Maternal health disparities could allow for certain groups to be unfairly targeted over others. For example, research has shown that Black patients are at a much higher risk of suffering a miscarriage than white patients. Native Americans, some Asians, and some Latinas also experience higher maternal mortality rates compared to white patients. Should extensive unborn personhood laws be recognized, there is a risk that minority groups could suffer discrimination and unfair criminal targeting.

Further, a report from the Centers for Disease Control and Prevention found that a large number of pregnancy-related deaths could be contributed to provider factors, including misdiagnosis and ineffective treatments, as well as system of care factors such as lack of coordination between providers. This poses questions about who would be responsible for maternal policing, and how narratives about pregnancy loss would be analyzed.

What about a pregnant person’s day-to-day life? The impact of unborn personhood laws could affect pregnant people who engage in behavior that is seen as harmful, significantly impacting everyday decisions. Failing to provide sufficient prenatal care may allow pregnant persons to be prosecuted, and child endangerment laws could apply putting parents at risk of criminal prosecution. A pregnant individual’s diet, sleep, exercise, as well as their work and home environment could be scrutinized for putting unborn life at risk. Undergoing certain medical treatments such as chemotherapy or taking medications that doctors advise against during pregnancy such as aspirin or antidepressants may also become illegal. This would make it impossible for pregnant individuals and their healthcare providers to identify all the actions which might threaten criminal prosecution. Ultimately, recognizing robust unborn personhood would significantly curtail the rights of a pregnant person.

Additionally, extensive unborn personhood laws would have broader implications for reproductive health and assisted reproductive technologies. These laws could impact the use of in vitro fertilization or preimplantation genetic diagnosis as the destruction of some embryos are an inevitable side effect of both fertility processes. Disposing of unused fertilized eggs or disregarding implanted eggs could result in criminal charges should the embryo be seen as a person from the moment of conception.

Living in a world where the unborn’s right to life outweighs a pregnant person’s right to decide what happens to their body places considerable limits on a pregnant person’s autonomy. The liability implications of proposed laws and increased surveillance threaten to further foster a blame culture regarding pregnancy — judgments especially unfair towards pregnant persons who suffer poor maternal outcomes through no fault of their own. Abortion care is now heavily regulated in many U.S. states and the prospect of affording the unborn full personhood status adds another terrifying dimension to the way reproductive healthcare is controlled in the United States.

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Whole Body Gestational Donation

photograph of pregnant belly

In her recent paper, “Whole Body Gestational Donation,” Oslo University-based ethicist Anna Smajdor proposed a thought experiment in which the bodies of brain-dead women were used as biological incubators to gestate humans from conception to birth. Her argument follows along the lines of traditional posthumous organ donation, arguing that if we’re comfortable with the regulatory and ethical systems underlying the gifting of individual body parts (hearts, kidneys, livers, eyes, etc.), then we should allow consenting women to donate their entire body to act as a deceased surrogate. And that, if we have some discomfort with the latter prospect, and we are committed to the idea of treating like for like, then perhaps there is something wrong with the more traditional form of donation. But, conversely, if we’re happy with the former, we should be satisfied with the latter.

Unsurprisingly, given the controversial subject matter, her paper blew up. Both curious and indignant responses have come from broadcasters and outlets across the spectrum, including Fox News, Cosmopolitan, BioEdge, and Women’s Health, to name just a few. Smajdor received such vitriol because of this coverage that she wrote a follow-up piece for The Progress Educational Trust, providing some context to her thoughts and defending the work, emphasizing that it was not a policy suggestion but, rather, a way of highlighting a potential inconsistency in how we understand postmortem donation.

Now, much could be written about how media outlets have covered (and, as Smajdor suggests in her response, deliberately misconstrued) her argument. Instead, however, what I want to do here is engage with the work itself. Specifically, I want to discuss the best use of donated organs.

But, before doing so, I feel it’s important to acknowledge that the prospect of women being used as tools for gestation after brain death is bleak. Rather than being taken off ventilation and allowed to die promptly (and maybe with some dignity), the idea that doctors could keep these women artificially alive simply so their reproductive organs can work to grow a fetus for a third party needing a surrogate is, on the face of it, horrifying. It, not unjustly, conjures up intense emotional discomfort for many. But, as Smajdor notes in her paper and response, simply finding something unpleasant isn’t a sufficient justification to consider it immoral or impermissible.

Many things that we now think acceptable, maybe even good, were at one point lambasted because of their seemingly clear immorality (heart transplants, for example). Ultimately, the “wisdom of repugnance,” as Leon Kass terms it, may give us reason to pause for thought but is not a good enough reason to outright disregard a proposal.

What, then, is the problem (or at least one of the problems) with Smajdor’s proposal? The answer for this article’s focus comes down to a numbers game. Specifically, how many people can the organs from a single cadaver help?

In the right conditions – that is, if the cause of death isn’t something that makes the organs unusable – a single deceased organ donor can save up to eight lives. Each kidney can be donated to a different individual, freeing them from dialysis (on average, for someone on dialysis, life expectancy is five to ten years). A single liver can be split into two and donated to two more people. Each lung can go to a different individual, helping another two people. Finally, the pancreas and the heart can help the final two persons. It is not just life-saving body parts like these that clinicians can harvest after death: corneas, skin, tendon, ligaments, blood, bone, bone marrow, and even the hands and face can be donated to those who need them. In fact, according to the U.S.’s Health Resources & Services Administration, a single deceased donor can save eight lives and help another seventy-five.

Not everyone who signs up to be a deceased donor can donate the full range of body parts. There are multiple reasons why this may be the case, from medical to social to religious. Even with this acknowledgement, however, each person who agrees to donate their organs and other biological materials does something which can fundamentally change many people’s lives for the better.

Each part of the body that is donated is a gift of immeasurable worth, one that we must think carefully about how best to use. To waste such organs or consolidate them so that they help only a tiny few is to do a great disservice to the person who, by donating their body after death, undertakes an act of immense selflessness and beneficence.

It is here that whole body gestational donation runs into a problem.

Using someone’s body for gestation means that those organs and tissues cannot be relocated and used for another purpose or help another person. Instead, the life-saving or enhancing organs and tissues will be occupied for the nine months that the donor uses their reproductive organs to grow a human. For example, you can’t harvest the heart from a brain-dead person if the cadaver already uses that heart to pump blood around the body during gestation. The same is true of other organs, which will need to remain in the body to ensure that pregnancy can occur and delivery is successful.

A potential counterargument is that not all organs are required for persons to gestate or even live. Living organ donation happens regularly and doesn’t result in that person’s untimely demise. You can donate part of your liver or pancreas, an entire kidney or lung and keep on living, albeit with some health implications. It seems theoretically possible that the same could be true for whole body gestational donation. Some organs and tissues would need to remain for the pregnancy to occur, while others could be harvested and donated to those in need. In effect, splitting the donation allocation into those required for gestation and those not.

Beyond the unpleasantness of such a proposition (which, again, isn’t sufficient to rule out the proposal), there may likely be practical reasons why this isn’t possible.

As Smajdor herself notes, pregnancy isn’t a benign process. On the contrary, it carries severe dangers and puts a not-inconsiderable toll on the human body. This is as likely to be the case for the dead body as it is for the alive one.

As such, harvesting multiple organs and tissues while simultaneously expecting the brain-dead body to gestate successfully might simply be asking too much. Ultimately, the body may be unable to handle the biological load of pregnancy without relying upon the full range of life-sustaining organs.

In traditional, post-donation pregnancies, this usually doesn’t appear to be the case. For example, the U.K.’s NHS notes that “many women have had babies after donating a kidney without any impact on the pregnancy from the kidney donation.” However, we’re not talking about normal pregnancies here. The brain-dead body could be vulnerable to various complications and negative impacts because it’s dead. And while this wouldn’t be a risk to the pregnant body (after all, they’re already dead), it could jeopardize the efficacy of whole body gestational donation if it means that successful gestation is unfeasible when combined with traditional organ donation.

So then, if faced with a choice between whole body gestational donation, which could help bring one person into the world, or traditional forms of organ and tissue donation, which could save eight lives and help a further seventy-five, the latter seems like the obvious choice. This, in turn, may help us explain (or perhaps justify) our differing intuitions when it comes to the apparent equivalence of organ donation and gestational donation.

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Who’s Harmed by Abortion?

photograph of pro-life protestors in front of Planned Parenthood

Earlier this month, the Texas Heartbeat Act came into force. The Act empowers citizens to sue anyone assisting a pregnant person in securing an abortion after a fetal heartbeat is detectable – generally around the six-week mark. This means that anyone tangentially involved in the causal chain of events leading to an abortion can be implicated. From the clinician who conducts the abortion, to the individual or company that provides the funds to pay for the procedure, to the taxi driver who drives the pregnant person to the clinic; if you can be linked to the abortion, you could be sued. Upon a successful lawsuit, the defendant must pay $10,000 to the person who raised the case and cover the legal fees of both parties.

The Act’s introduction has generated a lot of ethical, jurisprudential, and social debate. This includes its constitutional viability in respect to Roe v. Wade, the acceptability of deputizing private citizens to enforce state law, the lack of exceptions for pregnancies resulting from rape or incest, and the fairness of the ‘six-week mark’ given that most people don’t know they’re pregnant at this point. In a previous post, I’ve highlighted the Act’s problematic use of language. However, a Wall Street Journal article stood out to me, and I wanted to examine it here.

In “The Texas Abortion Law Is Unconventional Because It Had to Be,” Texas State Senator Bryan Hughes clarifies what he believes to be the ill-informed commentary surrounding the Act. He states that the legal gymnastics conducted by the Act were essential as the Supreme Court had gone beyond its purview in its decision in the Roe v. Wade case. Hughes argues that the Court meddled in affairs outside of its jurisdiction by taking the question of abortion out of the electorate’s hands. The Texas Heartbeat Act is a response to this overstep Hughes claims, writing that, “[l]ike it or not, states will keep crafting unconventional means of regulating abortion until the Supreme Court puts the question back where it belongs.”

To support this claim, Hughes talks about the nature of the wronged party in civil cases, arguing that, “[i]n almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.” Concerning abortion, the problem, at least as Hughes sees it, is twofold. First, the criminal law is unable to tackle the issue of abortion because of Roe V. Wade. Thus, civil law must be utilized. And this leads to Hughes’ second problem: in instances of abortion, the wronged party can’t bring a civil case against those that have done it harm, as that party no longer exists; abortion eliminates the supposedly wronged party. He writes:

“In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.”

The idea that a gestating being is harmed is essential for Hughes. His argument rests upon the civil law being used to compensate for that harm – no harm means no justifiable civil case. Yet, it’s not clear what harm means in this context or why we should care. And it is this lack of clarity that’s fascinating.

You might not think there’s much of a mystery here. You might say that the gestating life is harmed by being aborted, which would not be a novel line of argument. Many anti-abortionists and pro-lifers, such as Pope Francis, Marjorie Taylor Greene, and Marco Rubio, make similar claims. But, this stance isn’t without its problems.

Simply saying that something is harmed doesn’t provide us with any clear indication that such harm is morally relevant or a matter deserving retribution. Instead, it’s the outcome of that harm, qualities particular to the harm, or the experience of being harmed that conveys importance here. Thus, harm, in and of itself, is not morally relevant. To illustrate this, let’s turn to the 1995 classic Toy Story.

Sid, the film’s antagonist, is a destructive boy with a penchant for breaking toys. This habit is depicted as horrifying because the toys are not inanimate beings but are conscious, capable of possessing minds and feeling pain. Thus, their destruction at Sid’s hands is vicious, mutilative, and, yes, morally wrong. Yet, if those toys weren’t alive, Sid’s troubling actions wouldn’t be of moral concern. Thus, while he could harm the toys in terms of their physical destruction and deconstruction, it wouldn’t be harmful in the same way as one could harm another living being; Sid pulling the head off his sister’s doll would be entirely different from pulling the head off his sister.

Harm, as it concerns the destruction of an organized matter, is not inherently morally troublesome. We do it all the time when we eat or tear clothing. What matters is that action’s associations. In Toy Story, the toys are alive, so Sid should, in Woody’s words, “play nice.”

In the case of abortion, the harm is judged by anti-abortionists as being ethically reprehensible because it is harm inflicted upon a morally relevant being – the gestating lifeform. For them, the clump of cells developing in the womb is not the same as a toy, nor is it the same as other biological matter (like a puddle of blood). There is something special about gestation that confers moral importance.

But is there? Here, the idea of abortion as harm runs into another, much more substantive hurdle – what is the moral status of the gestating being?

Credit where it’s due, Hughes puts his cards on the table in his article and states, “I believe life begins at conception.” Thus, for him, the moral relevance of a gestating being begins at that exact moment. From then onwards, its moral status is considered comparable to that of any other human. This claim, derivable from the position of the Catholic Church since the nineteenth century, is one of the foundations upon which he builds his argument. Not that abortion causes the physical destruction of a complex material structure, but it harms a morally relevant being through that being’s obliteration; not that something has been destroyed, but someone has been harmed. Yet, this easy-to-understand view – that life after conception is comparable to life at any other point – leads to some counterintuitive outcomes. Namely, you have the same duties to the gestating being as you would to a fully-formed adult.

For example, imagine you discover that a fire has broken out at a fertility center, and you can hear yells coming from inside. With no one around and the fire department unlikely to arrive in time, you enter the building. You eventually find someone in one of the labs, trapped under a table. Unfortunately, freeing them will take time and risk both your lives. In the same lab, you see several trays labelled ‘fertilized eggs’, all of which contain hundreds of test tubes. As the fire intensifies, you realize that you can either save the person or hundreds of fertilized eggs, but not both. Which do you pick?

It’s a numbers game; how many lives can you save? The answer to that question depends on when you think life begins. You should grab the trays and leave the trapped individual to their fate if it’s at conception. After all, why save just one life when you could save hundreds? Yet, this would seem to be a bizarre outcome. To leave a conscious being to a painful death to save clusters of cells would strike many as counterintuitive, regardless of how many fertilized eggs you could carry. Yet, this is what Hughes’s beliefs require.

Now, that being said, I don’t think this line of reasoning inherently discredits the Texas Heartbeat Act. There are arguments, such as it being a response to the Supreme Court’s judicial oversight, which may be used as a justification for its implementation. However, trying to justify the Act as providing a necessary recourse for those who are supposedly wronged, as argued by Hughes, certainly needs refinement.

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Surrogacy in New York

photograph of pregnant torso

There are many ways to make a family. The intimate bonds of commitment and affection that make a family unit are grounded in a wide variety of ways: in biological relation, in choice, in shared experience, etc. Family bonds across generations are manifested between parent and child, but even these bonds vary in how they are grounded. Societies and our medical technology has developed in ways to support the variety of ways that parents can have children – currently there are ways to have a child through adoption, in vitro fertilization, and surrogacy, and advancements are being made in artificial wombs that would open up further methods of bringing children into the world. The diversity of methods for having children benefit potential parents for whom cis-hetero fertilization is not possible or desirable. Single parents, LGBT couples, and cis-hetero couples with fertility concerns are all aided by this variety of methods. 

So, the medical technologies and social policies that support individuals’ decisions to become parents, and thereby positively respect autonomy of these people. However, as with many developments and advancements that can be costly, there are justice considerations that arise: who is benefitting from the development, and who is placed at risk? Gestational surrogacy has recently been debated along these lines, for while the opportunity to have a child via surrogate benefits many potential parents, the risk and burden of gestation is adopted by someone else. To be a surrogate, a person agrees to take on the responsibilities of pregnancy and gestation for a potential parent with the understanding that parental rights and responsibilities after the birth of the child will belong to the person seeking the surrogate, not the person who gestates the child. The morality of compensating someone to take on this burden with their time and body raises questions for feminists and economic ethicists alike. 

Recently, New York State failed to pass a bill that would make compensated gestational surrogacy legal. Currently, in New York, only altruistic surrogacy is legal and surrogacy contracts are unenforceable. Surrogates cannot receive a fee or compensation, and the success of the arrangement is due solely to the integrity of the parties involved. 

New York is one of two states that currently ban compensated gestational surrogacy outright. In 1992, a gestational surrogate in New Jersey sued to keep parental rights over her biological child. In the wake of that suit, New Jersey, Michigan and New York passed bills banning gestational surrogacy. New Jersey reversed the ban last year, leaving New York and Michigan remaining. (Though it is important to note the variety of restrictions and protections that exist across America, sometimes at the county-by-county level.) 

However, the proposed bill — allowing gestational surrogates to be compensated for bearing a child without intending to bear the rights and responsibilities of parenthood — did not succeed during this legislative session. Democratic representatives were concerned that compensated surrogacy presents a slippery slope to commodifying women’s bodies and the bill did not garner sufficient support. “We must ensure that the health and welfare of women who enter into these arrangements are protected, and that reproductive surrogacy does not become commercialized,” said Assembly Speaker Carl Heastie.

Some feminists, such as Gloria Steinem, have been vocal opponents of gestational surrogacy. These opponents are concerned about the exploitation of people from marginalized and vulnerable groups and putting the bodies of individuals from such group to use for gestation. The monetary incentive to put one’s body through pregnancy presses on the economically vulnerable in an unjust way, they claim, and their case is strengthened by the state of surrogacy in Cambodia, Thailand, and India. In India, for example, some surrogates are forced to live in special homes and have no health insurance beyond the pregnancy, and no guarantee of payment.

Other feminists, as well as infertility advocates and LGBT groups, have been advocating in favor of changing the New York law. Governor Cuomo criticized the failure of support behind the bill, emphasizing the protections for the surrogates included that were meant to safeguard against exploitation. With all of these safeguards, Cuomo questioned how much the lawmakers were respecting the autonomy of those that would choose to be surrogates: “I say, how about a woman’s right to choose, which we just argued for Roe v. Wade?” Cuomo said. “But in this state we say the woman must have an attorney, the woman must have a health counselor, the transaction will be supervised under the Department of Health, the woman can’t be in dire economic conditions, but you still believe the woman is not competent to make that decision.” 

Thus the division between protecting vulnerable groups (economically disadvantaged and individuals with uteruses) and advocating for individuals to be able to take on risks consensually came down in favor of protection in New York this month. Both sides emphasized that this will be an ongoing conversation.

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Iceland Has Almost Eliminated Down Syndrome through Selective Abortion. Is That a Good Thing?

Ultrasound image

A recent article from CBS News reported that almost 100 percent of pregnant women in Iceland choose to terminate their pregnancy, should a pre-natal screening test come back positive for Down Syndrome. Nearly 85 percent of all pregnant women in Iceland take this optional test. Only around one or two children are now born in Iceland with Down Syndrome per year. On the other side of the Atlantic, the Ohio state legislature is currently considering bills to criminalize selective abortion done for terminating a fetus with Down Syndrome. Obviously, opinions differ drastically on the moral permissibility of the termination of Down Syndrome pregnancies.

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Abortion and the Artificial Womb

This past week, scientists have shared that they have created the most successful artificial womb yet. Lambs have been born healthily after spending up to half of their gestation in a simulated uterus.  

For now, this technology is proving to be intriguingly successful in lambs. To keep hormones, temperature, oxygen, and other life-sustaining factors stable for humans will be quite a hurdle, but scientists and spectators are already hypothesizing about what this could mean farther down the line (specialists estimate testing this technology on humans would be about three years in the future). Artificial wombs could be of help not just with premature births on the cusp of viability, but perhaps even earlier. Perhaps, artificial wombs can be of use soon after conception, or are the next stage of development for so-called test tube babies. In that case, we could develop children without the need of a woman’s uterus altogether!

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On Forcing Women to Share Custody with their Rapist

As the intersection of religious, political, medical, feminist, and moral debate, abortion is one of the most divisive ethical issues in our nation. Pro-choice supporters argue that women have the right to determine the fates of their own bodies whereas pro-life activists consider abortion to be murder. An issue that looms around the discussion of abortion is the circumstance of conception from rape. Pro-life individuals may shy away from the issue or even admit rape as an exception. However, websites like Students for Life advise their readers to stand firm in opposition of abortion, questioning rhetorically, “The perpetrator must be punished to the fullest extent of the law, but does the helpless child, who is guilty of no crime, deserve death?” Claiming that abortion perpetuates the “pattern of violence and victim-hood,” Students for Life suggests that the rape victim bears the responsibility to break the cycle of violence. However, does the cycle really end for the women of the estimated 17,000 to 32,000 rape-related pregnancies who choose to keep their children? Women are not only punished for their abortions; in the United States, women may be forced to share their children’s custody with their rapists.

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Surrogacy and Abortion Rights

On February 18, The Atlantic’s Katie O’Reilly published an article titled, “When Parents and Surrogates Disagree on Abortion.” The article describes a messy ongoing legal battle between a pro-life surrogate carrying triplets and the soon-to-be father of these children. In January, a California woman named Melissa Cook entered into a surrogacy contract with a single Georgia man. There were three embryos created, as is frequently the case when doctors implant multiple embryos at a time to increase the chance that one will be fertilized.

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