Fetal personhood: What happens when the rights of the “fertilized egg” supersede the rights of the mother
BMJ 2025; 388 doi: https://doi.org/10.1136/bmj.r372 (Published 24 February 2025) Cite this as: BMJ 2025;388:r372
Since the US Supreme Court issued the Dobbs decision, which rolled back the constitutional right to abortion, public health experts have focused mainly on the harm to health caused by abortion bans, as more states moved to restrict when abortion was legal.12 While this is a legitimate focus, there has been another, stealthier legal trend that threatens reproductive healthcare and bodily autonomy more broadly. The rise of laws and state high court opinions granting fertilized eggs, embryos, or fetuses separate legal rights from the person carrying the pregnancy are equally nefarious.
At first glance, it may seem that the movement to recognise a fetus as a legal person has only recently gained momentum, as evidenced by lawmakers in Idaho, Indiana, North Dakota, Oklahoma, South Carolina, and Texas introducing or working to introduce bills to allow homicide charges to be brought against people suspected of having an abortion.345 Or in Montana where after voters approved by 58% a state constitutional amendment in 2024 that secured abortion rights, lawmakers are now moving to place a “personhood upon conception” amendment on the ballot in 2026.6
These moves are not new; they are part of a longer term strategy by anti-abortion organisers to establish embryos and fetuses as protected persons under the 14th amendment of the US Constitution.7 This concept could justify imposing a national abortion ban, outlawing in vitro fertilisation (IVF), contraception methods, and any reproductive healthcare deemed to endanger an embryo or fetus, and further open the door for surveillance and punishment during pregnancy.
Fetal personhood was once a radical ideology, but anti-abortion activists have embedded rights for fetuses at the state level. Currently, 17 states have established fetal or embryonic personhood in criminal and/or civil laws.8 Seizing on tragic stories of violence against pregnant women, 38 states have adopted feticide laws that allow homicide charges to be brought for violent acts that cause the loss of a pregnancy.8 While most of these laws exclude pregnant people for being charged in relation to their own pregnancies, they have served to normalise the idea that fertilized eggs, embryos, and fetuses are separate human beings and crime victims.8 Moreover, in a handful of states, overzealous prosecutors have filed charges against those who experience pregnancy loss despite exceptions for the pregnant person.8
Six states’ feticide laws could be interpreted as criminalising the destruction of frozen embryos, potentially jeopardising access to IVF.8 In a judicial opinion last year, Alabama’s Supreme Court held that frozen embryos are “extrauterine children” under its civil wrongful death statute, briefly plunging families into uncertainty as IVF clinics suspended treatments. This ruling relied on a decade-old precedent in which the state high court found that a non-viable fetus is considered a “child” under its criminal chemical endangerment law.910 The legislature quickly acted to amend the statute and overturn the high court’s opinion, but IVF in Alabama is only safe until a challenge under the state’s fetal personhood constitutional amendment reaches the court.911
The Trojan horse of anti-abortion efforts
The penalisation of substance use during pregnancy, and participation or coercion of health providers to report and provide medical records to law enforcement, have been the Trojan horse of the broader agenda to establish personhood rights “from the moment of conception.”12 Anti-abortion organisers have used fetal personhood to weaponise statutes on child abuse and neglect against pregnant people.13 In 24 states and Washington DC, substance use during pregnancy—considered a health or mental health condition in other contexts—is considered child abuse or neglect, and is grounds for civil commitment in five states.8
Opioid overdose is a major cause of death among pregnant women.1314 Prosecuting people who use substances during pregnancy can deter them from seeking prenatal care, which may place the mother and the fetus at risk of adverse birth or pregnancy-related outcomes.121516 In a nation that has one of the worst records among high income countries for maternal mortality, this punitive approach further interferes with the patient-provider relationship and drives patients away from needed medical care.17 Ironically, allegations that the pregnant person has not accessed prenatal care or sought help during or after birth are sometimes included to bolster other charges.1314
More widely, we’ve seen how the encroachment of punitive law into healthcare can lead to mistrust between providers and patients, as patients may fear their providers reporting them to authorities.18 In one high profile case, Candi Miller, a black woman in Georgia with multiple morbidities, died after refusing to get medically supervised abortion care because of the state’s recently introduced law that characterises abortion as a felony.19 We’ve also seen how health providers in states with abortion bans are being forced to delay care to pregnant people experiencing complications because of the fear of prosecution or loss of licence, causing harm to mothers, infants, and communities.202122
The Supreme Court’s decision in Dobbs has exacerbated pregnancy prosecution trends and adverse health outcomes. In the first year of Dobbs, prosecutors initiated at least 210 cases charging patients with crimes related to pregnancy, pregnancy loss, or birth.13 This is the highest number of prosecutions documented in any one year since 1973. Since the Dobbs decision, infant mortality has also increased, and states with the highest number of pregnancy-related prosecutions are among those with the worst maternal and infant health outcomes.1323
Granting separate legal rights to embryos and fetuses violates the rights, health, and wellbeing of the person who is carrying the pregnancy. The criminalisation of substance use and substance use disorder during pregnancy and the criminalisation of abortion illustrate the interconnected systems of oppression that prey on the most vulnerable communities. Women of colour and on low incomes are overrepresented not only among people getting abortions, but also in maternal mortality and morbidity rates, and among people in contact with the carceral system overall and for charges related to pregnancy.2425 As more states pass laws that criminalise abortion care and pregnancy loss, and expand surveillance and punishment of actions deemed harmful to “unborn life,” reproductive healthcare is endangered, bodily autonomy is eviscerated, and health and economic inequities will worsen.
Footnotes
Competing interests: None declared.
Provenance and peer review: Commissioned; not externally peer reviewed.