The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn

What claims to protection can be asserted by a human fetus? That question, familiar to philosophy and religion, has long haunted law as well. While the philosophical and theological issues remain unresolved, and are perhaps unresolvable, I believe that we can no longer avoid some resolution of the legal status of the fetus. The potential benefits of fetal research, the ability to fertilize the human ovum in a laboratory dish, and the increasing awareness that a mother’s activities during pregnancy may affect the health of her offspring create pressing policy issues that raise possible conflicts among fetuses, mothers, and researchers. This Article probes the juridical status of the fetus, assessing what it should be in the light of recent developments in case law, legislation, medicine, and technology.