Fetal Legal Eagle: Personhood FAQ

The Fetal Legal Eagle Mascot:
Umbert the Unborn
(© Gary Cangemi)

Next year, North Dakota will vote on a state constitutional amendment that defines the beginning of human life as the beginning of human rights.  This is also known as a Personhood amendment.  I have written about Personhood before, but, in case you missed it, let me remind you that Personhood has three major effects:

  1. Personhood recognizes the human rights of all human beings, from the time of conception to the time of natural death — whether that’s seven minutes or seven decades after conception,
  2. if Roe v. Wade is ever overturned, the equal rights Personhood extends to the unborn would make it effectively impossible to perform abortions in North Dakota (unless the mother’s life is imperiled; see below), and
  3. it would result in lawsuits.

This is a fairly significant legal change, and many people who are sympathetic to the idea of protecting the unborn are concerned about possible unintended legal side effects.

In my opinion, the official Personhood campaign is doing a terrible job addressing those concerns, because they are much more interested in talking about Jesus and babies They seem to think Christianity is a necessary prerequisite to basic constitutional rights and human decency.  I think that is why Personhood initiatives have built up a short but perfect losing streak.

Several months ago, in conversation with Personhood skeptics at Jezebel.com, I tried to answer some of their questions and clear up certain confusions about the Personhood amendment.  I hope you’ll find it helpful, especially if you are a North Dakota voter.

Q: Under Personhood, what would happen when a mother has a clinical spontaneous abortion?

A: Absolutely nothing.

The amendment reads (in full), “The inalienable right to life of every human being at any stage of development must be recognized and protected.”  If it becomes law, this means that any person who deliberately kills any human being at any stage of development would be guilty of murder.  But spontaneous abortion is death by natural causes.  No one is at fault.  The Amendment criminalizes murder, not unavoidable tragedies.

Q: So, would women be held accountable for their bodies if the pregnancy failed?

A: No. Supporters of the amendment do not desire this, and there is no basis in law for this. If you are an organ donor and the organ you donate fails, killing the recipient, you are not responsible, nor are you held accountable. Similarly, if your body fails to support a developing human, resulting in the death of that zygote, embryo, or fetus, you are not responsible, nor would you be held accountable — even under the most stringent Personhood laws. (And, of course, that’s very important, because death by natural causes is extremely common at the earliest stages of pregnancy, accounting for up to 50% of all pregnancies.) Allowing nature to take its course does not violate the “inalienable right to life.”

Q: What if a fetus miscarries, but it does not expel itself from the uterus? Would doctors not be allowed to remove it? Should the mother’s life be put in danger?

A: If a dead fetus fails to expel itself from the uterus, it can be removed. Removing a dead fetus from the womb does not violate its “inalienable right to life.” It is, after all, already dead!  This is one of several forms of abortion that would remain legal under Personhood.

Q: What about women who are unaware of their pregnancy, and inadvertently cause the death of the developing fetus? Would Personhood mean that we have to throw them into jail for manslaughter?  Do Personhood supporters want that?  I heard Personhood supporters don’t really care about the unborn; they just want to control and enslave women.

A: No, Personhood would not criminalize accidental fetal death.  Personhood supporters do not want that, and the Personhood amendment does not provide any legal basis for it.

The North Dakota criminal code defines “manslaughter” as “recklessly causing the death of another human being” (ND Code 12.1.16.02). It is paired with “negligent homicide”, which is “negligently causing the death of another human being” (ND Code 12.1.16.03).  A mother who is unaware that she is carrying a human life within her cannot be guilty of recklessness nor negligence toward that life.  Indeed, even if some devious prosecutor managed to construe otherwise, and attempted to build a case against some mom who unknowingly caused a miscarriage, the legal bars for “negligence” and “recklessness” are far too high for him to succeed in this scenario.  For example, imagine a mother has a two-year-old son, who has a deathly allergy to peanuts — but she has no idea. She makes him a peanut-butter-and-jelly sandwich. After entering anaphylactic shock, he is rushed to the hosptial and dies. Is this mother guilty of negligent homicide or manslaughter? Of course not; she is the victim of a tragedy.  Only a truly deranged legal system would even investigate such a sad but innocent occurrence without extremely good reason.

Now, if this same mother had watched her son go into shock, clearly in medical distress, but, instead of calling the ambulance, decided to go take a bath and wait for him to die, it *is* possible that she would be investigated for manslaughter — and, if she clearly acted out of depraved disdain for her sons life, she could even be prosecuted and convicted. Similarly, it is possible that the passage of this amendment could lead to some prosecutions of mothers whose fetuses die, if (and only if) the death was caused by a clear and intentional act chosen freely by the mother that was highly likely to kill the fetus. For example, a pregnant woman who repeatedly throws herself down a flight of stairs, killing her unborn child in the process, could face charges (depending on a number of factors, such as mental competence). If Personhood is passed, an unborn child has equal rights with any other human child, so mothers who try to kill their children through recklessness before they are born would be treated the same as mothers today who abandon their children by throwing them in dumpsters.

But some people seem to believe that Personhood would make it a crime for women to ride a roller coaster or drink wine if there’s any chance of her becoming pregnant.  Personhood does not provide any legal basis for such claims.  It is not true.

Q: Does Personhood give human rights to sperm and eggs?  Aren’t they just as human as fertilized eggs just after conception?  Under Personhood, wouldn’t male masturbation or female menstruation be murder?

A: No, Personhood does not give human rights to human sperm or eggs.

Yes, it is true that they are human cells, and they are alive, so, in a vague sense, sperm and eggs are “human life”… but so are the skin cells that flake off your skin every hour of every day.  They are not human beings — complete, independent human organisms with their own genes and their own destiny.  For many centuries, we did not know how human sex cells turned into human beings.  Many people thought that it happened very gradually, over the course of several months.

However, during the 20th century, with the help of modern science, we learned that the life of each human being actually begins very early.  All human beings begin about a day after intercourse, at the time of conception, when the sperm and egg cells merge and die in order to create a completely new organism.  The process takes less than a second, not a few months as 12th-century scientists believed.  (An excellent explanation by a scientist for non-scientists can be found here.)  Unfortunately, it has taken some time for our laws to catch up with the revelations of science — but catch up they have, with many fetal rights now being recognized from the moment of conception in a majority of states as well as at the national level.

Under Personhood male masturbation and female menstruation would continue to be legal and widespread, exactly as they are today.  And, yes, that is a very strange sentence to write.  The fact that I have to write it just goes to show how much confusion and misinformation about Personhood is floating around out there.

Q: What about in vitro fertilization?  I heard that Personhood would make IVF illegal.  How would women with fertility problems have children?

A: This is probably the most common misconception about Personhood.  I think that some of its opponents are deliberately spreading it, because it sounds so ridiculous.  It makes Personhood supporters sound like they don’t just want to protect human life, but want to control women’s fertility.

As I explained in the last question, Personhood would not give any rights to sperm or eggs, and it would not change any laws about the use of your sperm or eggs.  You would continue to have the legal right to use your sex cells in any way you want — for sex, for masturbation, for science, for art, whatever.  Therefore, it would still be perfectly legal to put a sperm and an egg to make a new baby.  It wouldn’t matter if you did the assembly in a lab.  IVF would remain legal.

What Personhood would restrict is the dark side of IVF.  In order to accelerate the process while keeping expenses down, modern IVF clinics don’t create just one baby in the lab.  They typically create nine.  The two or three children who are considered the most “fit” to survive are implanted in the mother, grow up, and get born, going on to live normal lives.  The others are legally considered to be property, not persons.  Typically, they are either killed or indefinitely frozen.

Personhood would require everyone to treat those “surplus embryos” as persons, not property.   Parents and IVF centers would become responsible for the well-being of these very young children.  Safeguards would have to be put in place.  It is possible that embryo freezing would become a thing of the past, with IVF clinics focusing on maximizing the viability of one or two babies, instead of creating half a dozen babies and disposing of the ones that aren’t wanted.  All this would be significantly more expensive than the current mass-production/mass-disposal model.  It would take a number of years for IVF specialists to figure out the new model and bring those costs back down.

So IVF would remain legal, but it would have to treat the human beings it creates as persons, not property.  This would cost money.

Personally, I think that’s a very worthwhile trade-off.  The safety regulations and anti-child-labor laws of the Progressive Era forced factory owners to make more humane workplaces, and that cost money, too.  But, in time, they adapted, and consumers became accustomed to paying a little more money for the peace-of-mind that comes with knowing that they weren’t supporting the exploitation or killing of children.  You’ll have to decide for yourself whether that applies at any level to IVF.

Q: Would women have to claim the fetus on their taxes as a dependent for the months it has been growing?

A: This sounds silly, at first — sillier than the roller-coasters question above — but, actually, this is one of the few things that passing Personhood actually could change.  According to federal law (26 U.S.C. 152(c)), you may claim all your children as dependents on your federal tax return.  If Personhood passed, North Dakota would officially consider your unborn children to be full human individuals with equal rights — fully and completely your children for all legal purposes.  

I am not an expert on tax law and how the various jurisdictions interact, but, especially in the wake of Windsor v. United States (aka “the DOMA case”) and its loud affirmation of state primacy in making decisions about important life events, I suspect that, in the end, the IRS would have to allow pregnant North Dakota residents to claim their unborn children as dependents.  Unborn children also qualify for the child tax credit and several other benefits.  (The IRS would have to revise its dependent-verification process, which has relied on a Social Security number since 1998.)  Certainly for the purposes of North Dakota taxes, residents would be able to claim their unborn children. No one ever has to claim anyone as a dependent, but, if they can, they probably will!

Even though they could be claimed for deductions on income tax forms, unborn children would not be considered citizens, even if Personhood were passed.  Citizenship is automatically granted at birth, according to Amendment XIV.  Congress could choose to grant citizenship earlier if it chose (Article I, Section 8), but it has not done so.  They would share the same legal status as resident aliens (26 U.S.C. 7701).  Since only citizens can receive Social Security numbers, unborn children would not be enrolled in Social Security until birth, just like today.

Q: What about the 14 year old girl who is raped and impregnated by a family member? Or any victim of rape, for that matter?

A: It would not be legal for the victims of rape to kill their unborn children, except indirectly in the course of a necessary medical procedure. For example, just like today, a rape victim could have her fallopian tube removed if her pregnancy became ectopic, even though this would ultimately cause the highly likely death of the child. Fourteen-year-old rape victims face a wide variety of medical risks from pregnancy at such a young age, and there are a variety of foreseeable circumstances where an indirect abortion would be medically indicated and legally allowed. However, just as a rape victim who gives birth to her child is not legally allowed to strangle that child to death with shoelaces, a rape victim would not, under Personhood, be allowed to kill her unborn child for anything other than quite serious medical need.

This raises several important related points, both legal and social.  First and foremost, it is imperative that states strip rapists of parental rights.  Right now, fully 31 states leave the basic parental rights of rapists intact.  I do not know how this is possible, given that both pro-lifers and pro-choicers find the idea horrifying beyond words.

Relatedly, it is imperative that our society do a better job supporting the victims of rape, particularly as regards their choices.  Fifty years ago, if you were raped, you had pretty much just one option: adoption.  If you didn’t give that baby up for adoption, you were pretty much on your own.  Today, you still have one option: abortion.  If you don’t kill that baby, you’re pretty much on your own. Planned Parenthood last year performed over 300,000 abortions, but provided fewer than 2,500 adoption referrals.

We have to do better at providing a full range of humane options and support for the victims of rape, including counseling and substantial financial support.  I would even argue that, because of the unique way in which responsibility for a child has been thrust upon them against their will, rape victims who choose not to give their children up for adoption should receive additional benefits over and above what is normally available to single parents.  And if this costs the taxpayers a little extra money, so be it.  We have a sacred responsibility to the victims of rape, and it is one of the few things our government does that’s truly worth going into debt for.  Plus, it’s not like it’d be hard to find the money — cutting two F-35’s would pay for ten years of the program, even after Personhood.

Our society’s shortcomings with respect to rape would not be exacerbated by passing Personhood, but it would make fixing our problems much more urgent.

Q: What about the woman who has a fetus with anencephaly, or any other number of cephalic disorders? Would she be forced to give birth and care for it, most likely in a hospital, just to wait for it to die?

A: Under Personhood, parents and doctors would have exactly the same duties for a severely disabled unborn child as they currently do for a born child with equally severe disabilities.  This means that both parents would have a duty to care for that child, even if that child is likely to live a much shorter life than the rest of us.  It would not be legal to deliberately kill the child, before or after birth.

However, Personhood would not require doctors to take any extraordinary measures to prolong life.  The amendment only extends equal rights to unborn children; it does not give them greater rights than anyone else.  Just like today, nature would be permitted to take its course, if parents and doctors agreed that that was the best possible course of action for the baby.

Do you have more questions about Personhood or any other aspects of abortion law?  Ask them in the comments, and they may be featured in a future edition of Fetal Legal Eagle! 

(Probably will be, too.  Nobody Reads This Blog, so you don’t have a lot of competition.)

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