The Rights of "Unborn Children" and the Value of Pregnant Women

Aquarter century after the "International Year of the Child," we now seem to be in the era of the "Unborn Child." Partly this is because of medical advances: highly refined imaging techniques have made the fetus more visually accessible to parents. In good measure, however, the new era is a product of political shifts. In 2004, President Bush signed into law the Unborn Victims of Violence Act, which makes it a separate federal offense to bring about the death or bodily injury of a "child in utero" while committing certain crimes, and recognizes everything from a zygote to a fetus as an independent "victim" with legal rights distinct from the woman who has been harmed. In 2002, the Department of Health and Human Services adopted new regulations expanding the definition of "child" in the State Children's Health Insurance Program "so that a State may elect to make individuals in the period between conception and birth eligible for coverage." Finally, Senator Brownback and thirty-one cosponsors have proposed the Unborn Child Pain Awareness Act, a scientifically dubious piece of legislation that would require physicians performing the exceedingly rare abortions after twenty weeks to inform pregnant women of "the option of choosing to have anesthesia or other pain-reducing drug or drugs administered directly to the pain-capable unborn child."

The legislative focus on the unborn is aimed at women who choose abortion, but it may also have adverse consequences for women who choose not to have an abortion, and it challenges a central tenet of human rights—namely, that no person can be required to submit to state enforced surgery for the benefit of another.

The historical context of fetal rights legislation should make the most fervent proponents of fetal rights—pregnant women—wary. Often, in the past, expansions of fetal rights have been purchased through the diminution of pregnant women's rights. The fetal "right" to protection from environmental toxins cost pregnant women the right to good jobs: for nearly ten years before the U.S. Supreme Court ruled against such polices in 1991, companies used "fetal protection" policies as a basis for prohibiting fertile women from taking high-paying blue collar jobs that might expose them to lead. The fetal "right" to health and life has cost women their bodily integrity (women have been forced to undergo cesarean sections or blood transfusion), their liberty (women have been imprisoned for risking harm to a fetus through alcohol or drug use), and in some cases their lives (a court-ordered cesarean section probably accelerated the death in 1987 of Angela Carder, who had a recurrance of bone cancer that had metastasized to her lung). The fetal "right" not to be exposed to pharmaceutical agents has cost pregnant women their right to participate in drug trials that held out their only hope of cure from lethal illnesses. The vehicle for these infringements on pregnant women's rights has been third parties' assertions that they, rather than the mother, have the authority to speak for the fetus in securing these newly defined rights. For example, employers have argued for the right to speak for the fetus in determining when a work environment is inappropriate for the fetus. In mandating cesarean section, the courts have apparently concluded that the judiciary is better positioned to speak for the fetus and that a competent but dying mother's wishes to refuse surgery are no longer worthy of consideration. Most recently, a state's attorney has taken up the cudgel for the fetus by charging a woman with murder for her refusal to consent to a cesarean section.

It is within the context of these attempts to wrest the right to speak for the fetus from mothers that legislation that will expand the rights of the fetus—such as the Unborn Victims of Violence Act—must be considered. The act makes the injury or death of a fetus during commission of a crime a federal offense, the punishment for which "is the same as the punishment . . . for that conduct had that injury or death occurred to the...