Fetuses aren't People
Let’s cure a pound of patriarchy, shall we?
Yes, pregnant human beings are pregnant with human beings. No, pregnant people are not pregnant with people. Curious distinction, eh? It’s a legal one but its importance is critical in maintaining pregnant people’s autonomy. It seems intuitive but bear with me as I lay out the consequences of the anti-abortion “fetuses are people, too” movement. Remember: in the United States, corporations are people (insert facepalm for how great that decision was.) Anti-abortion activists have worked diligently for more than a century to enshrine rights of a fetus into law, and to some measure they have been successful (see end of Roe, existence of TRAP laws). However the goal is and has always been “fetuses are people, too.” I am here to help readers carry forth the good word that: 1) no, they are not because of the laws of physics and 2) if they were, that would mean pregnant people were NOT people.
I realize when referring to the laws of physics, that could mean anything. After all, our very existence is based in the laws of physics. But to give a brief and broad overview, things like our hearts beating happens because of electrical impulses, or differences in electrical charge across cell membranes leading to polarization and depolarization such that the heart muscle cell contracts. Many cells contract at once, and so blood is moved through our hearts and bodies. The rate of the heart beating is controlled not only by areas of the heart itself but also by electrical and hormonal signals sent to the heart from the brain and other organs. So, yeah: physics. The physiology of our bodies can be broken down into various principles of physics, the details of which are beyond our scope here given this is not a medical textbook. The irrefutable fact is this: the physiology of the body functions as complex systems of physics in action. Remember that one can either accept or reject facts, but rejecting the laws of physics doesn’t mean they don’t apply—it means you could really hurt yourself jumping off a roof if you think the laws of physics don’t apply to your belief system.
Let’s apply these concepts to the very real phenomenon of pregnancy. If I were to become pregnant, the pregnancy (zygote, embryo, fetus, etc) could not exist without my physiology. This bears repeating: the pregnancy cannot exist without me, my body, my existence. The fetus needs my heart to beat to deliver the oxygenated blood that my lungs inhaled to my uterus and then to the placenta so that the pregnancy, too, may use oxygen for its physiologic processes. Of course, pregnancies need many more things aside from oxygen to exist, such as the nutrients provided by my mouth masticating and swallowing food which my stomach and intestines then digest and deliver into my bloodstream which is then ultimately pumped by my heart to my uterus… you get the idea. So it is my body and my body’s physiology (see: laws of physics) that the pregnancy requires in order to 1) exist, 2) develop and grow, and 3) be expelled from my body either in miscarriage or birth. Should I choose, I could remove it with an abortion if I do not want to continue being pregnant. If I have autonomy over my own body, do I not then have autonomy over my own pregnancy? Yes. So it becomes clear that without autonomy over my pregnancy, I do not have autonomy over my body and thus I am no longer a person. I am an incubator. A brood mare. This is the agenda of anti-abortion (AKA fascist) activists. They reject facts, rebuff the laws of physics and declare, “No! Pregnant people do NOT have autonomy over their own body because they do NOT have autonomy over their own pregnancy!” The fascist logic being that fetuses are people who cannot advocate for themselves and thus they need legal protections as deemed by the state and the state’s interest in their existence and thriving. This may sound familiar, such as Child Protective Services, the foster care system, “substance use during pregnancy” laws, and other state-sanctioned kidnapping and incarcerating structures. [1-14]
To revoke the autonomy of pregnant people is, in fact, violating the laws of physics: it can’t be done, and to try is asinine and corrupt. Unfortunately, our culture and justice systems are not required to adhere to the laws of physics. Suffice it to say that if “a person” needs my body to exist, then I will be the one making all the decisions as the only autonomous person in the equation, thank you very much. (Consider life-saving measures of organ donations: we cannot take from one person and give to another, even if to save the other’s life, without consent. At present, this does not apply to pregnant people in many areas of the country and world.) Our present reality has revoked autonomy from people who are pregnant and it will get so much worse if fetuses “become legal people.” I can’t even fathom how bad it will get…but I’ll try to paint a picture here.
Let’s pretend for a moment that the anti-abortion folks (*cough* fascists) get what they want and fetal personhood becomes legal. What then? The fetus becomes elevated in status above the pregnant person. Why above? Because there can be no “equal to” the pregnant person (see above). Fetal personhood elevates the pregnancy above the pregnant person regarding priority because the pregnancy is dependent on the pregnant person and cannot advocate for itself. If the human being who is pregnant is a person, and the human being they are pregnant with is also a person, you can see how equality of status is a non-starter because of physiology. Here’s how it plays out: as a person, I cannot cause harm to another person, whether intentional or unintentional, because it is a crime (and also unethical, immoral, etc). Fetal personhood means that I, as a pregnant person, could not cause harm to my pregnancy, whether intentional or unintentional, because it would be a crime. So now I’m pregnant with a person and if I smoke, that is a crime because it can harm the person inside my uterus. In any scenario the pregnant person’s behavior can come into question and what happens is, given its natural elevated status as an entity that cannot advocate for itself, the fetus would become a ward of the state and the state would determine its fate. The pregnant person is removed from the equation entirely. This means no longer needing informed consent when providing medical care. “Hello, pregnant patient of mine, you are to stop smoking or else face prison because smoking is bad for your pregnancy. Also, here is a vaccine that you need for the protection of your pregnancy, sorry about the pinch and burn. Are you taking your prenatal vitamins? If not, you could be charged with criminal endangerment of the pregnancy.” If you think this is hyperbole, keep in mind that people said abortion becoming illegal was hyperbole. Speaking of abortion, that will absolutely be illegal everywhere and from the moment of that positive pregnancy test (possibly from the first day of a missed period). So now that people are forced to continue any and all pregnancies, here are a few examples of what that looks like. Keep in mind, there is no need to exercise the imagination here. This is happening RIGHT NOW in states where abortion is illegal and people cannot get to a place to have a legal abortion:
- Fetuses without brain development are born, possibly via cesarean section, and if the pregnant person is fortunate enough not to die during birth then they will be forced to watch their newborn suffer for an undetermined amount of time before the newborn dies.
- Fetuses with any sort of abnormality that is incompatible with life, same as above: hopefully the pregnant person survives the birth, but then is forced to watch their newborn suffer and die.
- Uh oh, an otherwise unremarkable full-term pregnancy is in trouble during labor. A cesarean section is needed to save the pregnancy and deliver the fetus alive. No need to consent the pregnant person* for major abdominal surgery, they’re going to the OR whether they like it or not. They will undergo the risks of major abdominal surgery whether they like it or not. Future pregnancies will have the increased risks of life-threatening conditions such as c-section scar ectopic, placenta previa, accreta, percreta, need for hysterectomy and/or blood transfusions, etc, whether they like it or not. They will be placed at risk of post-surgical complications whether they like it or not. [THE DECISION TO DELIVER BY CESAREAN IS NOT WITHOUT SERIOUS PRESENT AND FUTURE CONSEQUENCES.]
- Will it be legal to treat ectopic pregnancies? Answer unclear. A pregnancy is a pregnancy so I fear that people may be required to begin internally hemorrhaging before treatment can be administered.
- Will it be legal to treat miscarriages? Perhaps not if the gestational sac hasn’t been naturally pushed out. Who’s to say that an otherwise life-saving D&C procedure wasn’t an illegal abortion? Will people be required to bleed to death and then post-mortem the law says: you should have done a D&C, doc?
The list goes on and on about the importance of pregnant people’s autonomy, what respecting it means and what violating it means. We should be making laws to protect pregnant people and their autonomy, which by association protects fetuses that are planned to be birthed. Instead we have laws “to protect fetuses” which results in the incarceration of pregnant people. Last I checked, being in prison is not good for a pregnancy. We have laws that result in kidnapping newborns from their parents, which, again, is very not good neither for the baby nor the parent(s). Imagine a world where the number one cause of maternal mortality was NOT homicide because we prioritize valuing pregnant people and holding violent people accountable instead [15]. We should protect pregnant people, starting with their autonomy. Ways to guarantee pregnant people do not have autonomy include but are not limited to: 1) make abortion illegal/inaccessible 2) give fetuses personhood status.
We have already seen the many ways in which pregnant people risk their health and lives in order to gestate and birth a pregnancy. They should be the only ones deciding to undergo these risks or not. So how is there any question as to the “personhood” of a pregnancy? It simply cannot be and, more importantly, must not come to be. Please, go forth and speak truth to power. I’ll be the first to shout it from the rooftops: if you need my body to exist, it is my autonomy that holds the power.
“We should, at all times, insist that we belong to ourselves and have the agency to make decisions about our own lives. Our voices, whether loud or soft, matter. Our behaviour, whether seen as 'good' or 'bad', remains our choice.”
-Malebo Sephodi [16]
Citations:
1. Bridges, K. M. (2021). Pregnancy and the carceral state. Michigan Law Review, 119(6), 1475–1526. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=7622&context=mlr
2. Boone, M., & McMichael, E. (2021). State-created fetal harm. Georgetown Law Journal, 109, 1369–1422. https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2021/03/Boone_McMichael_State-Created-Fetal-Harm.pdf
3. Flavin, J. (2009). Our bodies, our crimes: The policing of women’s reproduction in America. New York University Press.
4. Goodwin, M. (2020). Policing the womb: Invisible women and the criminalization of motherhood. Cambridge University Press. https://www.cambridge.org/core/books/policing-the-womb/F3D40E0FECEEA350EA9594D973B08224
5. Ocen, P. A. (2017). Birthing injustice: Pregnancy as a status offense. George Washington Law Review, 85, 1163–1212. https://www.gwlr.org/wp-content/uploads/2018/01/85-Geo.-Wash.-L.-Rev.-1163.pdf
6. Paltrow, L. M., & Flavin, J. (2013). Arrests of and forced interventions on pregnant women in the United States, 1973–2005: Implications for women’s legal status and public health. Journal of Health Politics, Policy and Law, 38(2), 299–343. https://read.dukeupress.edu/jhppl/article/38/2/299/13533
7. Roberts, D. E. (1997). Unshackling Black motherhood. Michigan Law Review, 95(4), 938–965. https://repository.law.umich.edu/mlr/vol95/iss4/8/
8. Bird, B. (2016). Fetal personhood laws as limits to maternal autonomy. Hastings Women’s Law Journal, 27(1), 3–34. https://repository.uclawsf.edu/context/hwlj/article/1140/viewcontent/fetal_personhood_laws.pdf
9. Gvozden, A. (2022). Fetal protection laws and the personhood problem. Journal of Criminal Law and Criminology, 112(3), 509–556. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7722&context=jclc
10. Center for Reproductive Rights. (2000). Punishing women for their behavior during pregnancy. https://reproductiverights.org/wp-content/uploads/2018/08/pub_bp_punishingwomen.pdf
11. Pregnancy Justice. (2021). Amicus brief of Pregnancy Justice in support of petitioners. https://www.supremecourt.gov/DocketPDF/19/19-1392/193710/20210924170501991_19-1392%20Brief.pdf
12. American College of Obstetricians and Gynecologists. (2020). Opposition to criminalization of individuals during pregnancy and the postpartum period. https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period
13. If/When/How: Lawyering for Reproductive Justice. (2023). Communication to the UN Working Group on Discrimination Against Women and Girls. https://ifwhenhow.org/wp-content/uploads/2023/06/WGDAWCommunicationFullDraft.docx.pdf
14. Public Integrity. (2022, June 6). When pregnancy loss becomes a crime. https://publicintegrity.org/inside-publici/newsletters/watchdog-newsletter/pregnancy-loss-crime-reproductive-rights/
15. SMFM. New national study finds homicide and suicide is the #1 cause of maternal death in the U.S. Eurekalert. January 30, 2025. Accessed January 30, 2025. https://www.eurekalert.org/news-releases/1071501 https://www.contemporaryobgyn.net/view/study-homicide-and-suicide-are-leading-causes-of-maternal-death-in-the-united-states
16. Sephodi, M. (2017). Miss Behave. BlackBird Books.
*I had a patient in active labor and the fetal heartbeat showed trouble. She needed an emergency cesarean section to save the baby. She declined and explained that whatever happened “was god’s will” but she would not have a c-section. She had a vaginal delivery of a stillborn. It was her choice, not her partner’s, not her attorney general’s, not a supreme court justice’s, and certainly not mine. That’s what respecting patient autonomy means. It’s not always easy, but it is always right.
