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Fetal protection in law
Some laws seek to protect or otherwise recognize the fetus. Some of these grant recognition under specific conditions: the fetus can legally be a victim of a crime such as feticide, a beneficiary of insurance or social assistance, or an inheritor of property.
- The American Convention on Human Rights is a treaty signed by 24 Latin American countries in 1969, which states that from the moment of conception, human beings have rights. It came into force in 1978.
- The Unborn Victims of Violence Act is a United States law introduced into Congress in 1999 which defines violent assault committed against pregnant women as being a crime against two victims: the woman and the fetus she carries. This law was passed in 2004 after the murder of Laci Peterson and the fetus she was carrying.
- In 2002, U.S. President George W. Bush announced a plan to ensure health care coverage for fetuses under the State Children's Health Insurance Program (SCHIP).
- Iranian law holds that anyone who brings about a miscarriage must pay a monetary fine, which varies depending upon the stage of development and/or sex of the fetus, in compensation.
- The Hungarian constitution enacted in 2011 states that the human life will be protected from the moment of conception.
Right-to-life and legal personhood
- The 1978 American Convention on Human Rights states, in Article 4.1, "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception." The Convention is considered binding only for the 24 of 35 member nations of the Organization of American States who ratified it.
- In 1983, the Eighth Amendment of the Constitution of Ireland, also known as the "Pro-Life Amendment", was added to the Constitution of the Ireland by popular referendum. The new Article 40.3.3° read "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."
- In 1993, the Federal Constitutional Court of Germany held that the constitution guaranteed a right to life from conception, but that it is within the discretion of parliament not to punish abortion in the first trimester, providing that women agreed to undergo special counselling designed to discourage termination and "protect unborn life". The intermediate decision was the result of an attempt to join East Germany's abortion law to that of West Germany after reunification in 1990.
Other governments have laws in place that state that fetuses are not legally recognized persons:
- In Canadian law, under section 223 of the Criminal Code of Canada, a fetus is a "human being ... when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed."
Much opposition to legal abortion in the West is based on a concern for fetal rights. Similarly many pro-choice groups oppose fetal rights, even when they do not impinge directly on the abortion issue, because they perceive this as a slippery slope strategy to restricting abortions.
Most recently, as of November 5th, 2014 two Personhood amendments have been struck down in North Dakota and Colorado. "In Colorado, Amendment 67 — which sought to update the state’s criminal code to define fetuses as children — failed by a large 64 percent to 36 percent margin. It marks the third time that Colorado voters have rejected personhood. Reproductive rights advocates are celebrating the defeat of both measures as an important victory against personhood."
Various initiatives, prompted by concern for the ill effects which might be posed to the health or development of a fetus, seek to restrict or discourage women from engaging in certain behaviors while pregnant. Also, in some countries, laws have been passed to restrict the practice of abortion based upon the gender of the fetus.
- Many jurisdictions actively warn against the consumption of alcoholic beverages by pregnant women, recommending a maximum intake or total abstinence, due to its association with Fetal alcohol syndrome. Countries that encourage those who are pregnant to avoid alcohol either entirely or partially include Australia, Canada, France, Iceland, Israel, the Netherlands, Norway, New Zealand, Spain, the United Kingdom, and the United States.
- Many national and international agencies recommend dietary guidelines for pregnant women due to the health risks posed by the consumption of fish contaminated with methylmercury through industrial pollution. Studies have linked exposure to various levels of methylmercury in utero to neurological disorders in children.
- The use of tobacco products or exposure to secondhand smoke during pregnancy has been linked to low birth weight. Governor Mike Huckabee of Arkansas, citing studies which attribute 10% of infant deaths to tobacco-smoking mothers, considered adopting a smoking ban for pregnant women in 2006 with the aim of reducing infant mortality.
- See also: Smoking and pregnancy
- No U.S. state has enacted a law which criminalizes specific behavior during pregnancy, but, nonetheless, it has been estimated that at least 200 American women have been criminally prosecuted or arrested under existing child abuse statutes for allegedly bringing about harm in-utero through their conduct during pregnancy. Reasons for pressing charges included use of illicit drugs, consumption of alcohol, and failure to comply with a doctor's order of bedrest or caesarean section. Drug addicts have been accused of "supplying drugs to a minor" through unintentional chemical subjection via the umbilical cord. Others have been charged with assault with a deadly weapon with the "deadly weapon" in question being an illegal drug. Minnesota, Wisconsin and South Dakota allow women who continue to use substances while pregnant to be civilly committed. Some states require that medical providers report any infant who is born with a physical dependency, or who tests positive for residual traces of alcohol or drugs, to child welfare authorities.
- Cultural preferences for male children in some parts of Asia, such as Mainland China, India, South Korea, and Taiwan, have sometimes led to sex-selective abortion of female fetuses, leading to the disparity between male-to-female birth rates which is observed in some places. India banned the practice of abortion for reasons of fetal sex in 1994.
- Jennifer Johnson of Seminole County, Florida was convicted under a drug trafficking law in 1989. It was alleged that, in consuming cocaine during her pregnancy, she had delivered a controlled substance to a minor via the umbilical cord. She was sentenced to one-year in a drug treatment program, 14 years probation, and 200 hours of community service. Johnson appealed and Supreme Court of Florida overturned its decision to convict her in 1992.
- Cornelia Whitner of Central, South Carolina pled guilty in 1992 to a charge of criminal child neglect after she was discovered to have used cocaine while pregnant. Sentenced to eight years in prison, she petitioned the Court of Appeals 16 months later, claiming that she had been given ineffective counsel because her lawyer had failed to inform her that the charges laid against her might not be applicable given the legal status of a fetus. However, in the 1997 case Whitner v. South Carolina, the Supreme Court of South Carolina upheld its prosecution of Whitner.
- A woman from Winnipeg, Manitoba who had an inhalant addiction in 1996. She had three previous children, and, when she became pregnant a fourth time, Winnipeg Child and Family Services sought a court order permitting her to be committed to a drug rehabilitation facility for the remaining duration of her pregnancy. A judge agreed that the woman should be taken into custody. However, the decision was overturned by the Manitoba Court of Appeal.
- Brenda Drummond, 29, of Carleton Place, Ontario tried to abort at 9 months on 28 May 1996 by introducing a pellet gun in her vagina and shooting her fetus in the head. Attempted murder charges against her were dropped since the Criminal Code of Canada definition of "human being" doesn't include fetuses. She was later sentenced to 30 months probation for "failing to provide the necessities of life" for having failed to report the injury immediately after her son's birth.
- Melissa Ann Rowland of Salt Lake City, Utah was charged with murder in 2004 after her refusal to undergo a caesarean section resulted in one of the two in her twin pregnancy being stillborn. Rowland was later sentenced to 18 months probation as a result of secondary charge of child endangerment.
- Gov. Jeb Bush sought appointment of a legal guardian to protect the fetus of a developmentally-disabled rape victim in 2003. The woman, who could not assist police in identifying her assailant, was raped while living in a group home in Orlando, Florida. She gave birth to a child in September 2003.
- Congress of the United States of America. (March 25, 2004). Unborn Victims of Violence Act of 2004. H.R.1997. Retrieved July 31, 2006.
- "The Bush Administration's Plan for Fetal Care." (February 07, 2002). On Point. Retrieved July 31, 2006.
- Abortion Laws of the World. Annual Review of Population Law. Retrieved July 14, 2006. Archived August 27, 2006 at the Wayback Machine
- Farmer, Rebecca. National Organization for Women. (2001). "Fetal Rights" Initiatives Concern Abortion Rights Supporters. Retrieved July 31, 2006.
- Rosenburg, J. (2004). Low Birth Weight Is Linked to Timing of Prenatal Care and Other Maternal Factors. International Family Planning Perspectives, 30 (2). Retrieved July 31, 2006.
- "Legislators Want To Ban Pregnant Women From Smoking." (June 14, 2006). The Hometown Channel. Retrieved July 31, 2006. Archived April 11, 2008 at the Wayback Machine
- Center for Reproductive Rights. (September 2000). Punishing Women for Their Behavior During Pregnancy: An Approach That Undermines Women’s Health and Children’s Interests. Retrieved July 31, 2006.
- Jyotsna Singh, India probes baby body parts find, BBS News, July 23, 2007. Retrieved August 15, 2008.
- American Civil Liberties Union. (September 30, 1997). Coercive and Punitive Governmental Responses to Women's Conduct During Pregnancy. Retrieved July 31, 2006.
- Costello, Robert G. (2001). Fetal Endangerment: A Challenge For Criminal Law. Boalt Journal of Criminal Law, 4. Retrieved July 31, 2006.
- Lewin, Tamar. (October 30, 1997). "Abuse Laws Cover Fetus, a High Court Rules." The New York Times. Retrieved July 30, 2006. Archived May 13, 2006 at the Wayback Machine
- Whitner v. State[dead link], 328 S.C. 1, 492 S.E.2d 777 (1997).
- Robinson, B.A. Ontario Consultants for Religious Tolerance. (November 14, 1997). Balancing the Rights of the Woman and Her Fetus. Retrieved July 31, 2006.
- BC Pro-Choice Action Network. Pro-Choice Press, "Drummond Update", Spring 1997. (Retrieved 6 March 2008).
- Régis Bouchard. Le Droit, "Brenda Drummond pourra refaire sa vie", 7 February 1997.
- "Mother charged in Caesarean row." (March 12, 2004). BBC News. Retrieved July 31, 2006.
- Sage, Alexandria. (April 29, 2004). "Utah C-Section Mom Gets Probation." CBS News. Retrieved July 31, 2006.
- Canedy, Dana. (May 15, 2003). "Gov. Jeb Bush to Seek Guardian for Fetus of Rape Victim." The New York Times. Retrieved July 31, 2006.
- "Disabled Rape Victim Gives Birth." (September 1, 2003). CBS News. Retrieved July 31, 2006.