Hello again, dear readers. My apologies for the continuance of this topic, but it appears J’s post (and my addendum) have became rather famous in the anti-abortion rights realm, and I’ve received a few requests to elaborate, so I thought I would do so here. WARNING: This is, yet again, a loooong post. But it’s a worthwhile read if you’re interested in legal theories on fetal personhood (or at least I think it is 😉 ).
This post will examine the current personhood status of born individuals, and zygotes, blastocysts (pre-embryos), embryos, and fetuses (ZEF, for short), both in the US law and under international human rights law and norms. It will then discuss what we would need to find in order to change that law. It will then conclude with a more thorough examination of why granting personhood status to zygotes, blastocysts (pre-embryos), embryos, and/or fetuses is impossible without eroding the rights of women.*,**,***
* This post is dedicated to the friendly, if somewhat misguided blogger – DolceBella (DB) – but even more so to the ever-so-slightly-less-sane-than-the-rest-of-us commenter known as “Mike” on 1Flesh’s blogs. DB – I hope this answers your questions, but if not, feel free to ask away in the comments and we’ll keep the dialogue going. Mike, I have a feeling most of this might be above your pay grade, intellectually speaking, but give it a go anyway, will ya?
** Many of the concepts in this post come from Jessica Berg’s article, “Of Elephants and Embryos: A Proposed Framework for Legal Personhood.” I would highly recommend reading it for a more thorough background on the subject of legal personhood.
*** Mad props to the Center for Reproductive Rights for pulling together their piece on the dangers of granting personhood to ZEF, with info from around the world. Y’all should read that, here, too.
First, let’s talk a little bit about the beginnings of human life, which is where a lot of personhood arguments begin. Most of the efforts at granting personhood before birth (including DB’s) attempt to capitalize on the fact that there currently is NO consensus on when life begins. Different religions claim that human life begins from the moment of fertilization, to 40 days after fertilization (for men), to 80 days after fertilization (for women), to the 120thday of gestation, to the point at which the head emerges from the womb.
Similarly, the scientific and medical communities have yet to come to a consensus, but they HAVE agreed to certain terms surrounding pregnancy, and I believe it would be helpful if we all agreed to use these terms when talking about a pregnancy, particularly when we’re talking about pregnancy in relation to medical procedures and the law:
- Fertilization happens when a sperm penetrates and egg to create a zygote.
- After fertilization, a zygotetravels through the fallopian tubes, dividing to become several cells and becoming a blastocyst or pre-embryo.
- The blastocyst or pre-embryo reaches the uterus ~ 5 days after fertilization. A pregnancy officially begins when the blastocyst / pre-embryo implants into the lining of the uterus. It is important to note here that “conception” is not a scientific term; it is used INFORMALLY to refer to either fertilization OR implantation, and is thus imprecise – we should be using precise terms.
- ~ 3 weeks after fertilization has occurred, the implanted blastocyst has developed enough to be considered an embryo.
- Between the end of the 8th week and end of the 10thweek of pregnancy (10 – 12 weeks post fertilization), the embryo develops into a fetus.
Note – NOWHERE IN THERE did I use the term “baby” or “child.” That because those terms or neither medically nor scientifically accurate when discussing a pregnancy or a ZEF in the womb.
So, now that we’ve got the medical terminology down, I think we can continue.
Let’s talk first about the right to life in terms of international human rights. International and regional human rights treaties protect the right to life without defining exactly when life begins. However, analysis of the negotiations behind these treaties indicates that the drafters (which including religious groups such as the Holy See) did NOT intend for human rights, such as the right to life, to attach before birth.
As stated in my original blog post:
Article 1 of the Universal Declaration of Human Rights is a fundamental statement of inalienability: “All human beings are born free and equal in dignity and rights.” Particularly important here is that the word “born” was used INTENTIONALLY to exclude the fetus or any antenatal application of human rights. During the drafting of the UDHR, an amendment was proposed and rejected that would have deleted the word “born.” Arguments for the amendment were, in part, based on a desire to protect the right to life from the moment of conception. During negotiations, the representative from France explained that the statement, “All human beings are born free and equal…” meant that the right to freedom and equality was “inherent from the moment of birth.” Article one was adopted with its current language with 45 votes and 9 abstentions. Therefore, a ZEF has no rights under the Universal Declaration of Human Rights.
The International Covenant on Civil and Political Rights also rejects the idea that the rights to life, enshrined in Article 6(1), applies prior to birth. The history of the negotiations indicates that, again, an amendment was proposed and rejected that stated: “the right to life is inherent in the human person from the moment of conception, this right shall be protected by law.” The Commission voted to adopt Article 6 with no reference to conception by a vote of 55 to 0, with 17 abstentions.
Further, both the negotiations and the interpretation by the expert treaty body of the Convention on the Rights of the Child make clear that that the treaty does not recognize the right to life until birth. Though anti-abortion rights activists have often relied on Paragraph 9 of the preamble – “Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth” – to claim fetal rights, this is an erroneous argument. As originally drafted, the Preamble did not contact reference to protection “before as well as after birth.” The Holy See led the proposal to add this phrase, while stating that “the purpose of the amendment was not to preclude the possibility of an abortion.” Though the words were included, their limited purpose was reinforced by the statement that, “the Working Group does not intend to prejudice the interpretation of Article 1 or any other provision of the Convention by States Parties,” which is a reference to the definition of “a child.” Article 1 states, “For the purposes of the present Convention, a child means every human being below the age of 18 years…,” which, consistent with the UDHR, refers only to born persons.
And, finally, jurisprudence of the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) make clear that the principles of non-discrimination and equality require that the rights of a pregnant woman take priority over an interest in fetal life.
In terms of regional human rights standards, I’ll stick with just the American Declaration on the Rights and Duties of Man (ADRDM) instead of covering European and African law as well, as I’m in the US, and DB is in Canada. Article 1 of the ADRDM states that, “[e]very human being has the right to life, liberty, and the security of his person.” The drafters of the declaration specifically rejected an addition to this article that would of extended the right to life from the moment of conception.
Moving on to US Law, we discover that the constitutional right to life accrues at birth. For instance, SCOTUS has determined that “the word “person,” as used in the Fourteenth Amendment, does not include the unborn” (Roe v. Wade, 410 US 115, 157).
All of this, I hope, has convinced DB that ZEF are NOT currently persons under the US Constitution, nor under international law, and are therefore not entitled to the protection of persons under either the US constitution or international human rights law.
The question now becomes, SHOULD ZEF be entitled to personhood status the law?
I think perhaps I should stop here for a moment to delve a little more deeply into the concept of “person” in American jurisprudence.
Under US law, they are two types of “persons.” The first, natural persons, is the term used to refer to human beings’ legal status. Certain legal rights accrue immediately upon birth, and the term “natural person” can be taken to mean an entity who is entitled to maximum protection under the law. Standing in contrast to natural persons are juridical persons. “Judicial person” is a term used to refer to an entity that is not necessarily a human being, but for which society chooses to afford some of the same legal protections and rights afforded to natural persons.
Both of these terms refer to legal distinctions, and not moral ones. But since we’re talking about changing laws (i.e. granting legal personhood to a new category of entities), we should use legal language. Whether or not an entity meets the requirements of moral personhood is a debate for a different time and place (one not attached to the making of secular laws). NB: Moral personhood status, or the lack thereof, does NOT (and should not, and cannot) determine legal personhood status.
Further, it’s important to note that these terms also designate important distinctions. The first is that natural persons are ALWAYS genetically human. Juridical persons MAY be genetically human, but it is not a requirement (see, e.g. corporate personhood). Second, and this is important, natural persons are ALWAYS entitled to priority over juridical persons. This does not mean that juridical persons could never attain equal status with natural persons, merely that the allocation of such rights to juridical persons would have to be justified by the interests involved.
Justification for limiting the rights of current natural persons could come from the interests of the entity seeking personhood status. It could also come from the interest of current natural persons in protecting their rights; however, granting personhood status to a new entity based on the interest of others must be necessary in order to protect the interests of current natural persons.
An entity’s interests, in the sense mentioned above, means that an entity has the capacity to have a stake in things, which is contingent upon the entity being consciously aware. If an entity does not have interests as here defined, then they can’t be granted personhood based on their interests, only on the interests of those who are already natural persons. Further, natural personhood status granted on the basis of interests of others may be more limited in scope than personhood granted on the basis of oneself, and is incredibly rare.
The take away from this section: Natural personhood (and the attendant rights) exist from the moment of birth where the entity is genetically human. Granting natural personhood to other entities can happen either because the entity has interests of its own that justify it being termed a natural person (read: that justify limiting the rights of currently recognized natural persons), or (very rarely) where the interests of current natural persons justify the designation.
But what about judicial personhood? Like natural personhood, judicial personhood can only be granted when the interests of the entity in question justify the restriction of rights of to already recognized natural persons, or when the granting of juridical personhood is necessary to protect the interests of already recognized natural persons (also keep in mind that if the latter, the rights granted must actually be necessary to protect those interests).
Now that we’ve talked about the concepts of personhood, the requirements for granting legal personhood status to an entity, and the fact that natural personhood applies immediately upon birth, let’s move on to applying these requirements for legal personhood to human entities prior to birth.
Let’s start with zygotes, blastocysts, and pre-embryos, largely because, if personhood were to be granted to entities at these early stages of development, it would obviously extend to later stages. If zygotes, blastocyst, or embryos (ZBE) are not entitled to natural personhood, then we can consider whether or not they are entitled to juridical personhood. Then we can move on to determine whether fetuses are entitled to natural personhood, juridical personhood, or neither.
Top left: zygote; top right: 5 day blastocyst; bottom: 8 week embryo (LMP)
For ZBE, as with all entities for whom there is a question of the granting of natural personhood, we first look to whether the entity has interest of its own that would entitle it to that designation.
First, ZBE do not meet any of the criteria that natural persons exhibit for having an interest, such as sentience, consciousness, pain and pleasure perception, the capacity to relate to others, or the ability to communicate. As many have argued, however, ZBE have the POTENTIAL to develop these things. But the potentiality to develop these things should not be the basis for granting natural personhood. As Berg so keenly points out, if the potential to become a full person is the basis for legal personhood, then every genetically human cell would have a claim for personhood status based on current cloning technologies.
ZBE do not have interests of their own as they share only one characteristic with currently recognized natural persons – e.g. infants, children, or adult human beings – the fact that they are genetically human; they do not share the most important characteristic: sentience. And while they have the POTENTIAL to become an entity that shares all characteristics with a currently recognized natural person, that potentiality is not enough to grant natural personhood status. Because embryos do not have interests of their own, and the potential to develop these interests is insufficient for the granting of natural personhood, the granting of natural personhood status to ZBE must be based on the interests of currently recognized persons. There is, however, no evidence that suggests that the interests of currently recognized natural persons will suffer if ZBE are not recognized as natural persons; to the contrary, granting natural personhood to ZBE could limit the rights of currently recognized natural persons. This makes the granting of natural personhood to ZBE legally unacceptable.
Some states (e.g. Louisiana), however, have granted juridical personhood to ZBE on the theory that there is a need for a legal actor in certain, specific situations. Even in these cases, however, the rights granted under juridical personhood cannot constitutionally infringe upon the rights of natural persons (again, the rights of natural persons always take priority over the rights of juridical persons).
Take Away from this section? Zygotes, blastocysts, and embryos should not be granted natural personhood status because they do not have the capacity to have interests of their own, and there is no damage done to natural persons if they are not granted personhood status (to the contrary, damage might be done to currently natural persons if they WERE granted personhood status). Some states have granted juridical personhood status to ZBE based on the necessity of a legal actor, but states must be careful that the rights granted to such juridical persons do not infringe upon the rights of currently recognized natural persons.
Shall we move on to fetuses?
The relevant questions when determining whether or not fetuses should be granted personhood is both whether they should be granted personhood, what type of personhood should they be granted, and at what stage of development such a designation should apply. Sentience, physical development (i.e. the similarity to currently recognized natural persons), and birth are three distinct stages in fetal development to be considered.
10 week fetus
Prior to sentience (though there is some debate as to exactly when this occurs, it is no earlier than the late second trimester, and more likely sometime in the third trimester) a fetus, like the ZBE mentioned above, does not have interests of its own and therefore does not have the requisite interests for natural personhood. Further, there is little to no evidence that the rights of currently recognized natural persons have suffered because non-sentient fetuses have not been granted natural personhood status. Again, to the contrary, there is evidence that granting natural personhood status to fetuses would harm currently recognized natural persons. Arguments that granting juridical personhood status to fetuses prior to sentience harms the rights of natural persons in general ignores the harms that would befall individual natural persons that would result from the granting of juridical personhood to fetuses.
But what about fetuses after sentience, one of the hallmarks of a natural person? Granting natural personhood status to such fetuses when they reach the point of sentience would result in necessarily result in limitations to the rights of currently recognized persons – namely a pregnant woman who’s decisions during pregnancy might be constrained. Fetal interests at the point of sentience (particularly if the other hallmarks of self-interest, i.e. consciousness, pain and pleasure perception, the capacity to relate to others, or the ability to communicate are not present) are simply not strong enough to justify such a restriction on the rights of currently recognized natural persons. In order to recognize such fetuses as natural persons, it would be necessary to show how recognizing fetuses as natural persons would be necessary to fully protect the rights of currently recognized natural persons, and it is difficult to imagine a such a scenario.
If fetuses at a stage past sentience can’t be granted natural personhood status, could they be granted juridical personhood status? As with ZBE, the granting of juridical personhood to fetuses could occur based on fetal interest, or, more rarely, could occur on the basis of the interests of others SO LONG AS the rights that were granted to fetuses were necessary to protect the interests of others. Further, states would, once again, need to be sure that through the granting of juridical personhood status they were not infringing upon the rights of already natural persons, but were rather protecting the interests of currently recognized natural persons, and that the rights granted under juridical personhood were no broader than necessary to protect those interests.
Some have argued that the closer a fetus’ development comes to that of a born human (i.e. a natural person), the greater its interests are through increased cognitive and physical development (i.e. through making them similar to already recognized natural persons), making it worthwhile to grant them protections similar to those of infants or children. Specifically, it has been argued that fetuses at much later stages of development – for example, once a fetus’ internal and external organ structures have developed to a degree that make the fetus more similar to that of a born infant and natural person – are so similar to natural persons that the granting of natural personhood status is appropriate, with all its attendant rights and protections.
However, when analyzing this proposition, it is important to remember that interests of an entity alone cannot alone be the basis of the granting of personhood. A grant of natural personhood to a new entity must justify the necessary reduction in rights of currently recognized natural persons. In this instance, the right of a woman – a currently recognized natural person – to bodily integrity (also known as the right to self-determination), as protected by decisions made by SCOTUS and as protected under the UDHR and the ICCPR (which the United States has ratified), must take precedence over fetal interests.
NB: As I’ve said before, that terminations of pregnancy at such late term, are not performed except in EXTREMELY rare circumstances – circumstances in which a woman’s life or health is endangered, or in which a severe fetal anomaly, usually a condition incompatible with life, has been discovered. A woman does not wake up during their 8th or 9th month of pregnancy, after carefully caring for a developing ZEF, and suddenly decide to have an abortion for “funsies.” She does so because extreme circumstances require the termination of her pregnancy.
Since others have asked me precisely what the dangers would be in granting legal personhood, specifically natural personhood, rights to a fetus, I wanted to take a moment to discuss why the granting of personhood status to ZEF would be detrimental to currently recognized natural persons, and thus should not occur.
Once again, this analysis is necessary because rights entail corresponding obligations on the part of other rights-holder in regards to respect for those rights, meaning that recognizing other entities as persons would NECESSARILY limit the rights of currently recognized natural persons.
At this point I can see the comments start to come pouring in about slavery. Unfortunately, the comparison of the granting of natural personhood to former slaves to the granting of natural personhood to fetuses is a flawed comparison. Slaves were not only born entities, with interests of their own, slaves shared all relevant characteristics with then-recognized natural persons. The failure to recognize former slaves on the ground of such a nominal characteristic of skin color would harm then-recognized natural persons by undermining the protections for which the Constitution stands. By contrast, a ZEF throughout much of a pregnancy does not have interests of its own, and does not share sufficient characteristics with current natural persons to make the denial of natural personhood detrimental to current natural persons, neither individually nor collectively.
Moving on, we can start to look at the implications of granting personhood status to ZEF in more depth:
First, fetal personhood could carry implications for the protection of freedom of religion and conscience. For instance, individuals whose moral, ethical, or religious beliefs lead them to believe that life begins at birth could be restricted in acting in a manner consistent with their religious views.
Second, granting fetal personhood could mean that ZEF are included as victims throughout the penal code, opening the door to criminal investigation and prosecution of women who suffer miscarriages or stillbirths. While Louisiana has recognized ZEF has persons for the purposes of prosecution in, for example, murder trials, they have not recognizes ZEF as NATURAL persons, only as juridical persons.
Could this become criminalized? If fetuses are granted personhood rights, you betcha.
Third, the granting of natural personhood to ZEF could have chilling effects on women’s behavior and bodily autonomy, i.e. their protected rights to privacy and to self-determination. I know DB felt that J’s comparisons were hyperbole, but they’re actually not. If a fetus has all of the rights of a natural person, pregnant women could be sanctioned for abuse or child endangerment for engaging in activities that might endanger the ZEF (as women with born children are now). For example, not wearing a seatbelt, or drinking alcohol at any state of gestational development could lead to criminal prosecution.
Fourth, there could be significant consequences for women seeking fertility treatments using reproductive technologies. For example, women undergoing IVF might be required to implant all fertilized eggs to avoid the destruction or freezing of embryos, a practice which could result in higher rates of multiple pregnancies, jeopardizing both the health of women, and fetal development.
I could go on, to talk about property rights, registrations, and other things, but I hope, DB, you’re seeing my point about why granting personhood status, with its incumbent rights, could infringe upon the rights of women.
Further, these aren’t all hypothetical “the sky is falling” complaints. When we look at countries were nations have violated international human rights law by granting personhood rights to ZEFs, or where they place the rights of ZEFs over the rights of women, we see violations of women’s right to life and health; to be free from cruel, inhuman, or degrading treatment; to their liberty and security; to their right to privacy; and to determine the number and spacing of their children. To see case studies about this, visit here.
Final take away: Granting natural personhood to ZEF is a legal impossibility, both constitutionally and under international human rights law. Why? Because by granting personhood to a ZEF you NECESSARILY impinge upon the rights of a woman, a currently recognized natural person. There’s no fallacy there. None at all. This actually IS a zero sum game. And in such a “game,” the rights of women, currently recognized natural persons must ALWAYS take precedence when determining whether or not to grant natural personhood status to ZEF, a currently non-recognized entity.
Till next time,