Fetal Personhood Is Turning Pregnancy Into a Legal Minefield and Women Into Second Class Citizens
The American anti-abortion movement won its biggest legal victory in generations when the Supreme Court overturned Roe v. Wade in 2022. But ending the federal constitutional right to abortion was never necessarily the endpoint of the movement. The next legal frontier is potentially much broader, establishing that an embryo or fetus possesses independent legal rights beginning at fertilization.
That concept, generally described as fetal or embryonic personhood, sounds straightforward when reduced to the political slogan that life begins at conception. Its real world application is anything but simple. Once the government recognizes an embryo as a legally protected person independent of the pregnant woman carrying it, courts, prosecutors, hospitals and child welfare agencies face an unavoidable question: What happens when the interests attributed to that embryo or fetus conflict with the constitutional rights, medical decisions or physical autonomy of the woman?
That collision was the subject of a recent “Last Week Tonight” investigation by John Oliver, but the cases underlying the segment are not comedy. They involve women investigated after miscarriages, patients subjected to emergency court proceedings while actively in labor, mothers reported to child-welfare authorities following questionable drug screens and fertility clinics confronting potentially enormous liability for frozen embryos. The deeper issue is no longer simply abortion. It is whether pregnancy itself can change the relationship between an American citizen and the state.
The Personhood Problem Goes Far Beyond Abortion
Supporters of fetal personhood generally argue that human life deserves legal protection from conception and that the law should not distinguish between humans before and after birth simply because of their developmental stage or location. From that perspective, extending legal protection to unborn life is a logical extension of existing homicide, wrongful-death and child protection laws.
The constitutional problem begins when that principle is applied literally. Two separate rights bearing individuals would then occupy the same body, but only one can physically make medical decisions, consume food or medication, travel, undergo surgery or refuse treatment. The pregnant woman has established constitutional and common law interests in bodily integrity, medical consent and due process, while personhood advocates seek overlapping legal protections for an embryo or fetus biologically dependent on her body. When government officials decide the fetus’s interests should prevail, the woman’s ordinary autonomy can become conditional. That is why critics argue personhood does not merely regulate abortion. Taken to its logical extreme, it creates a separate legal framework for pregnant people.
America Is Already Prosecuting Pregnancy Outcomes
This concern is not hypothetical. Pregnancy Justice documented at least 210 cases in which pregnant people faced criminal charges associated with pregnancy, abortion, pregnancy loss or birth during the first year following the Dobbs decision. The organization described it as the largest number of pregnancy related prosecutions it had documented during a single year.
Not all of those prosecutions were brought under statutes explicitly labeled “fetal personhood” laws, an important distinction that sometimes gets lost in the political argument. Prosecutors have instead used a patchwork of child abuse, homicide, drug, corpse abuse and other criminal statutes. The broader concern is that legal recognition of embryos and fetuses as separate victims can provide additional pathways for investigating conduct during pregnancy.
Consider Brittany Watts. Watts was 21 weeks and five days pregnant in Ohio when her water broke prematurely. Doctors determined the pregnancy was nonviable. After multiple hospital visits, she miscarried at home. An autopsy determined that the fetus had died before delivery and found no illicit drugs. Nevertheless, Watts was arrested and faced a felony abuse-of-a-corpse charge carrying the possibility of imprisonment. A grand jury ultimately refused to indict her, and prosecutors concluded that she had not violated Ohio’s corpse abuse statute.
That outcome matters. Watts was not convicted, and her case does not establish that miscarriage itself is illegal in Ohio. But the fact that a woman experiencing a medically documented pregnancy loss could find herself arrested and facing felony prosecution demonstrates how quickly reproductive events can migrate from the hospital into the criminal justice system.
In Florida, a Woman Went From Labor to Zoom Court
One of the most disturbing recent examples occurred here in Florida. Cherise Doyley was in active labor at UF Health Jacksonville in September 2024. She had previously undergone three cesarean sections but did not want another C-section for her fourth delivery. During her 12th hour of labor, a nurse brought a tablet into her hospital room. On the screen were a judge, attorneys, physicians and other participants.
Doyley suddenly found herself participating in an emergency court hearing from her hospital bed over whether doctors could perform a C-section despite her refusal. ABC News reported that Doyley said she learned there would be a court proceeding when the tablet was wheeled into the room. This was not a criminal prosecution, nor was it simply the direct application of a fetal-personhood statute. It was a medical consent dispute, but it illustrates the underlying conflict with unusual clarity: once the government is invited to balance fetal interests against the wishes of a pregnant patient, her authority over her own body can become the subject of litigation in real time.
Think about the implications of that scene. A competent adult was lying in a hospital bed in active labor while lawyers and medical professionals asked a judge to determine whether an operation could be performed over her objection. Whatever one thinks about the medical judgment involved, the episode demonstrates how dramatically pregnancy can alter the legal relationship between patient, physician and state.
Imagine Applying That Standard Anywhere Else in Medicine
American law ordinarily places enormous weight on bodily autonomy. Competent adults can generally refuse surgery even when physicians believe the decision is dangerous. People are not routinely compelled to donate blood, bone marrow or organs to save another person’s life. Parents cannot normally be forced to surrender a kidney to save their child.
Pregnancy creates difficult ethical and medical circumstances, but personhood logic can produce a striking exception: the government may assert an interest in what happens inside one person’s body because another legally protected life is dependent upon it. That is the second class citizenship argument in its simplest form. If an adult who is not pregnant can reject medical treatment but pregnancy gives the government greater authority to override the same decision, pregnancy has altered that citizen’s practical legal autonomy.
Then There Is the Drug Testing Problem
Hospitals add another layer of surveillance. Drug testing during pregnancy and childbirth can have legitimate medical purposes. Physicians need accurate information when substances could affect treatment. But medical screening becomes something fundamentally different when a test can trigger police involvement, child welfare investigations or removal of a newborn.
State policies vary dramatically. A peer reviewed analysis of state laws found that 24 states and Washington, D.C., had classified prenatal drug use as child abuse or neglect during the period studied, while 37 states and D.C. required reporting of suspected prenatal drug use. The American College of Obstetricians and Gynecologists recommends counseling pregnant patients about drug testing and obtaining informed consent before testing, while warning clinicians to understand the potential child-protective and legal consequences associated with positive results.
There is a very good reason for that warning: screening tests can be wrong.
Yes, an Everything Bagel Can Become a Child Welfare Case
A CBS News and Marshall Project investigation examined mothers whose lives were thrown into turmoil following false-positive hospital drug tests and highlighted the possibility that ordinary foods and medications can interfere with preliminary screening results. One particularly extraordinary case involved a mother whose everything bagel contained poppy seeds.
An earlier federal lawsuit involving Elizabeth Mort documented a similarly absurd sequence of events. According to the complaint, Mort ate an everything bagel containing poppy seeds shortly before being admitted for labor. Her initial urine screen returned positive for opiates under the hospital’s testing threshold. Her newborn was subsequently taken into protective custody, while a later urine test was negative for illegal drugs.
There may be no better illustration of what happens when a medical screening system becomes intertwined with punitive state authority: eat a bagel, have a baby, trigger an opiate screen and meet child protective services.
That is not an argument against doctors screening for genuine substance-use problems. It is an argument for confirmatory testing, informed consent, medical judgment and due process before the government starts separating families.
Punishment Can Also Make Pregnancy Less Safe
There is another fundamental contradiction in punitive pregnancy policy: threatening patients with prosecution or loss of custody can discourage the very behavior government should want, seeking medical care. A pregnant person struggling with addiction needs prenatal treatment and evidence based substance-use care. If walking into a hospital can also mean being tested, reported, investigated or potentially prosecuted, some patients may become afraid of the healthcare system.
That can turn a policy supposedly designed to protect fetal health into one that discourages prenatal care. The federal Administration for Children and Families has acknowledged the complexity surrounding prenatal substance exposure and the enormous variation in how states, child welfare agencies and healthcare providers identify and respond to affected families. Addiction is a medical problem. Pregnancy does not magically transform it into a moral failing, and a jail cell is not prenatal care.
Alabama Demonstrated the IVF Problem Almost Perfectly
Then fetal personhood collided with fertility treatment. In 2024, the Alabama Supreme Court ruled in LePage v. Center for Reproductive Medicine that frozen embryos could qualify as “children” under Alabama’s Wrongful Death of a Minor Act, including embryos located outside a biological uterus.
The underlying case involved embryos stored at a fertility clinic. A hospital patient entered the cryogenic storage area, removed embryos and dropped them after the extreme cold injured the patient’s hand. The embryos were destroyed, and their parents sued under Alabama’s wrongful-death statute. The Alabama Supreme Court concluded that the statute applied to unborn children regardless of location.
The consequences were immediate. IVF providers paused treatment amid uncertainty over the potential liability associated with handling embryos, forcing Alabama lawmakers to scramble to pass legal protections for fertility providers. The episode exposed one of the biggest contradictions in the personhood project: politicians and activists can speak abstractly about conception creating a legal person, but fertility medicine forces the legal system to decide exactly what that means.
If Every Embryo Is Legally a Child, IVF Becomes Extremely Complicated
IVF routinely creates multiple embryos because not every embryo develops normally, survives thawing, implants successfully or results in a live birth. Some embryos remain frozen for years. Some are donated. Some are genetically abnormal. Some are eventually discarded according to patients’ wishes and applicable law.
Apply absolute personhood literally and the questions multiply rapidly. Is intentionally discarding an embryo homicide? Is accidentally destroying one manslaughter? Can parents abandon frozen embryos? Can an embryo inherit property? Can a fertility clinic ever stop maintaining abandoned embryos? Does a freezer malfunction create hundreds of wrongful deaths? Can patients choose which embryos undergo genetic testing or implantation?
These are not cheap philosophical tricks. They are foreseeable legal questions once the word “person” or “child” is extended to a microscopic embryo outside the human body. The political reaction following the Alabama ruling was revealing because politicians who had spent years embracing language suggesting life deserves full legal protection from conception suddenly had to explain why fertility clinics should nevertheless be permitted to create, freeze and sometimes dispose of embryos. The slogan had finally encountered the laboratory.
Fetal Personhood Forces a Question Its Supporters Cannot Avoid
There is a legitimate moral argument over when human life begins and what moral value society should assign to embryonic and fetal life. Millions of Americans sincerely believe life begins at conception, and those beliefs deserve to be represented accurately rather than caricatured. But legislation requires something more than moral conviction. It requires defining what happens when rights collide.
If a fertilized egg possesses legal rights equivalent to a born child, those rights must mean something. If government can enforce those rights against the person whose body sustains the pregnancy, then the state necessarily gains authority over some decisions that would otherwise belong exclusively to that person.
That is the central problem fetal personhood advocates eventually have to answer. The question is not simply whether an embryo has moral value, whether abortion makes people uncomfortable or whether society should encourage healthy pregnancies. The question is much more concrete: When the legal interests of a fetus and a pregnant woman conflict, whose rights win? Declaring both completely independent legal persons does not eliminate that conflict. It creates it.
This Is Where Post Roe America Is Heading
Dobbs was often described as returning abortion policy to the states. In practice, it also opened a much larger legal laboratory in which states are testing the boundaries of reproductive regulation. Fetal personhood represents one of the most consequential possible expansions because its logic reaches far beyond abortion clinics. It can touch miscarriage, stillbirth, prenatal drug exposure, medical consent, fertility treatment, embryo storage and potentially ordinary conduct during pregnancy.
The Alabama IVF crisis demonstrated that personhood can affect people desperately trying to become parents. Brittany Watts’ case demonstrated how a miscarriage can become a police matter even when the prosecution ultimately collapses. Cherise Doyley’s experience in Jacksonville demonstrated how quickly a medical disagreement during labor can become a courtroom proceeding. False positive drug testing cases demonstrate how imperfect medical evidence can unleash child welfare machinery on families.
None of these cases alone proves that every fetal-personhood proposal will produce every feared consequence. Different statutes contain different exceptions, constitutional protections remain contested in courts and some of the cases above arose through laws or legal theories other than explicit fetal-personhood statutes. That distinction matters.
But collectively, they expose the danger of pretending “personhood from conception” is merely a philosophical declaration without downstream consequences. Once written into law, personhood becomes jurisdiction. Jurisdiction creates authority, and authority eventually requires somebody, a doctor, prosecutor, social worker or judge, to decide what a pregnant person can and cannot do with her own body.
The abortion debate was supposedly about whether government could prohibit one medical procedure. Fetal personhood asks a much larger question: How much authority should the government acquire over a woman simply because she becomes pregnant? That is a debate America needs to have before slogans about protecting life quietly become laws governing the lives of the people already here.
Sources
Last Week Tonight — Fetal Personhood
The Guardian — John Oliver on Fetal Personhood
Pregnancy Justice — Pregnancy as a Crime After Dobbs
ABC News — Florida Woman Forced Into Court Hearing While in Labor
Associated Press — Brittany Watts Miscarriage Case
CBS News and The Marshall Project — False-Positive Drug Tests and New Mothers
American College of Obstetricians and Gynecologists — Drug Testing and Pregnancy Guidance
U.S. Administration for Children and Families — Prenatal Substance Exposure and Child Welfare
Alabama Supreme Court — LePage v. Center for Reproductive Medicine
