Over the last twenty years, we've seen numerous women subjected to prosecution or civil lawsuits for engaging in both legal and illegal conduct that is potentially harmful to a fetus. If fetal protection laws without adequate exceptions are adopted, state or local officials might feel licensed to prosecute a woman who smokes or drinks alcohol during pregnancy and subsequently miscarries or bears a stillborn fetus, or perhaps even a live baby in need of special medical attention.
And women might be sued for "prenatal negligence" by their own children, as happened in Grodin v. Grodin, a case from Michigan in which a court held that a child could sue his mother for having taken tetracycline during pregnancy, allegedly resulting in discoloration of the child's teeth.
We could also expect to see still more criminal prosecutions or child abuse or neglect proceedings brought against women who make childbirth choices of which doctors or judges disapprove. In , Kentucky officials charged a lay midwife and her clients with reckless homicide in the death of a fetus during a home birth.
And just this year, a Wisconsin judge ordered the detention of a woman who had disclosed her intention of giving birth at home over a doctor's objection. Such prosecutions and lawsuits for prenatal negligence infringe upon women's constitutional rights to privacy, equal protection, and due process. They treat pregnant women differently simply because they are pregnant, subjecting them to standards that do not apply to anyone else.
Some fetal protection bills disregard the Constitution's promise that citizens are entitled to due process of law. They violate due process guarantees if they lack a scienter requirement or are unacceptably vague. A scienter requirement specifies that the perpetrator of a crime must have intended to commit the crime. Such a requirement is usually necessary for a person to be convicted of an offense in criminal law. When legislation fails to address intent, as some fetal protection bills do, a person may be prosecuted and punished for a crime that he or she did not intend to commit, when a lesser charge would be more just.
Fetal protection bills also run the risk of being unconstitutionally vague if they do not define all of their terms and spell out precisely what conduct is prohibited. A fetal protection statute that leaves the public, health care workers, and law enforcement authorities uncertain as to its meaning is especially dangerous because it threatens to chill the exercise of constitutionally protected reproductive rights. Fetal protection bills must be analyzed very carefully.
Serious thought should be given to the bills' possible uses and ramifications. Here is a checklist of some important factors that you should evaluate in the bills and discuss with us:.
The ACLU Reproductive Freedom Project recommends extreme caution about fetal protection bills because of the potential dangers for reproductive rights. We urge supporters of civil liberties to be sensitive about evaluating proposed bills on three different levels: 1 legal; 2 political; and 3 rhetorical. By "legal," we mean that they must determine whether or not the proposed legislation will infringe on individual rights.
By "political," we mean that they must be aware what group, individual, or impetus is behind the legislation. And by "rhetorical," we mean that they must take care when they discuss or criticize fetal protection bills; our language should reflect understanding of why many people, including some who are pro-choice, might support fetal protection legislation.
While we need to make clear that we respect and sympathize with the many emotional dimensions of this issue, every effort must be made to ensure that fetal protection statutes will not pave the way for government actions that threaten women's rights or reproductive choice. Many states have "wrongful death" statutes, which allow someone acting on behalf of a deceased person -- usually a surviving relative or an administrator of the estate -- to recover damages for a wrongful or negligent act that caused the person's death.
The state courts are divided on whether or not stillborn fetuses may be regarded as "persons" for the purpose of bringing wrongful death actions on their behalf. The ACLU takes the position that when a prospective parent's plans to continue a pregnancy to term have beenfrustrated by others, that individual should be compensated for the loss of the pregnancy and the harm suffered. The prospective parent should bring a cause of action and be compensated under tort law, the area of the law concerned with compelling wrongdoers to compensate those whom they have injured.
We do not, however, believe that legal action should be brought by a parent or other party on behalf of a stillborn fetus, either under a wrongful death statute or under tort law generally.
Spelling out the problem Everyone agrees that adult human beings have the right to life. A strange idea Unfortunately there's no agreement in medicine, philosophy or theology as to what stage of foetal development should be associated with the right to life. Moral issues Because of the difficulty of deciding at what stage a foetus becomes a being with the right to life, some people argue that we should always err in favour of an earlier date. Relevance Some people say that if the foetus is not a person, then abortion deserves no condemnation.
The stages of foetal development The stages of foetal development Various points have been suggested as the point that the foetus gets the right to life. Here are some of those points and the arguments for and criticisms that have been made of choosing that point of development: Conception The 'Catechism of the Catholic Church ' states that the embryo must be treated as a person from conception and so do many others who oppose abortion Augustine made a distinction between embryo inanimatus , not yet endowed with a soul, and embryo animatus , endowed with a soul without "ensoulment", quickening does not seem to have any merit as the start time for human rights medically, the time of quickening is influenced by irrelevant factors, such as the number of previous pregnancies that the mother has had Aristotle's theory Aristotle suggested 40 days males , 90 days females was the time.
The vegetable stage was reached at conception, the animal at 'animation', and the rational soon after live birth. Tissue separation This is the time when tissues in the foetus separate into different types. Is it: when part of the baby is outside the mother's body? Some people say that it's odd that a being's right to life should depend on whether a being is located inside or outside the womb But they miss the essential point which is that at birth the baby begins to exist independently of the mother Top.
Vagueness is a virtue As we've seen, there are difficulties with choosing a precise point when the unborn gets the right to live. This view is sometimes called 'gradualism'. See also. It follows from this that one is authorized to refer to fetus which is 16 weeks or more as human being. It follows from this that usage theory of meaning cannot offer the semantic story we are in search of. Moreover, if the proponents believe that there is a theory of meaning which can be utilized in order to arriving at the cut-off point we are looking for, it is their task to offer the relevant theory to be applied.
Finally, having seen the dilemma with which the proponent is confronted, I am inclined to conclude that the proponent is not authorized to resort to the first premise in order to formulate an argument in favour of the permissibility of committing abortion.
But, it does not follow from this that committing abortion is implausible, categorically speaking. Rather, it just shows that the first premise is wanting and imperfect to be utilized in this relation.
National Center for Biotechnology Information , U. J Med Ethics Hist Med. Soroush Dabbagh. Author information Article notes Copyright and License information Disclaimer. Assistant Professor, Iranian Institute of Philosophy. Received Mar 3; Accepted Mar This is an open-access article distributed under the terms of the Creative Commons Attribution NonCommercial 3.
This article has been cited by other articles in PMC. Abstract Abortion is one of the controversial issues discussed in medical ethics. Keywords: Abortion, Fetus, human. Introduction Abortion is one of the controversial issues discussed in medical ethics 1. Conclusion Finally, having seen the dilemma with which the proponent is confronted, I am inclined to conclude that the proponent is not authorized to resort to the first premise in order to formulate an argument in favour of the permissibility of committing abortion.
References 1. Anonymous, Martin P, Paulus MP. Neurobiology of decision-making: quo vadis? Cognitive Brain Research. The influence of positive affect on variety seeking among safe, enjoyable products. J Consum Res. The influence of positive affect on the decision rule in risk situations: focus on outcome and especially avoidance of loss rather than probability.
Org Behav Human Decis Process. Chronic pain patients are impaired on an emotional decision-making task. Durant W. First, Jacobs carried out a survey, supposedly representative of all Americans, by seeking potential participants on the Amazon Mechanical Turk crowdsourcing marketplace and accepting all 2, respondents who agreed to participate.
He found that most of these respondents trust biologists over others — including religious leaders, voters, philosophers and Supreme Court justices — to determine when human life begins. Then, he sent 62, biologists who could be identified from institutional faculty and researcher lists a separate survey, offering several options for when, biologically, human life might begin.
That result is not a proper survey method and does not carry any statistical or scientific weight. That may well be because there is neither scientific consensus on the matter of when human life actually begins nor agreement that it is a question that biologists can answer using their science.
Scott Gilbert , the Howard A. Schneiderman Professor of Biology emeritus at Swarthmore College, is the author of the standard textbook of developmental biology. He has identified as many as five developmental stages that, from a biological perspective, are all plausible beginning points for human life. Biology, as science knows it now, can tell these stages apart, but cannot determine at which one of these stages life begins.
The first of these stages is fertilization in the egg duct, when a zygote is formed with the full human genetic material. If genetic material alone makes a potential human being, then when we shed skin cells — as we do all the time — we are severing potential human beings. The second plausible stage is called gastrulation, which happens about two weeks after fertilization.
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