On fetal homicide and pre natal torts

As has been reported elsewhere, "[i]n the wake of a savage attack on a pregnant woman and the removal of her fetus, Colorado lawmakers are planning to introduce a bill that would criminalize fetal homicide. If the bill passes, the state would join nearly 40 others that make fetuses a distinct class of victims."  

The question of whether an unborn fetus should be considered a person is very interesting and can have important implications for tort law also.  Many jurisdictions have addressed the question of whether we should recognize a cause of action for the wrongful death of a stillborn fetus either by common law or statute.  And, as you probably remember also, there are three approaches to the question:  there is no cause of action because the fetus is not a person since it was never alive, there is a cause of action if it can be shown the fetus was viable and there is a cause of action because the fetus is a person from the moment of conception.

The question becomes even more interesting when the person who causes the death of the fetus is the mother.  In Illinois, for example, even though the state recognizes the right of the next of kin to claim for the wrongful death of a fetus, the Supreme Court has found that this right could not be claimed against the mother.  This holding was reaffirmed last year by the state's Appellate Court.  I wrote about that case, and the law in Illinois, here.

I am writing today about this topic again because a few days ago, the New York Times published a piece criticizing the proposed Colorado statute based on the same arguments the courts in Illinois have used to reject the right to recover against a mother who negligently causes an injury to her unborn child.  The article is called "How not to protect pregnant women" and it is available here.  You should read the full article, but here is the gist of the argument:

Opposition to the creation of fetal victimhood has focused largely on the threat to abortion rights. This is a legitimate concern, but affording victim status to a fetus has implications beyond the erosion of abortion rights. Legally severing a fetus from the pregnant woman has the effect of pitting her interests against the fetus’s.

Over time, this move has increased the state’s power to interfere in the lives of pregnant women. . . .

Granting personhood to fetuses makes women criminally responsible, not only for the life of the fetus, but also for its well-being. This is a particularly high burden. Pregnancy in our society tends to be idealized and women counted on to provide a perfect uterine environment.

Fetal rights can be employed to justify punishing any deviation from this standard. This is not hypothetical: Pregnant women have already been prosecuted for using drugs, refusing a cesarean section, having sex against a doctor’s recommendation and attempting suicide.

Prosecutors could, in theory, use the notion of “prenatal abuse” to pursue pregnant women who consumed too little folic acid; neglected exercise; gained too much or too little weight; continued on a course of anti-depressants; or had a stressful job. Under the mantle of fetal protection, pregnancy could become subject not only to criminal sanction but to pervasive state regulation.

These are essentially the same reasons why Illinois has rejected a possible cause of action in tort against a mother for fetal injury.