The harsh legal reality of ‘fetal personhood’

On Oct. 17, the North Carolina Court of Appeals terminated a woman’s parental rights because of abuse that occurred when she was 4 months pregnant. Why? Because, as the court ruled, “life begins at conception.”

The implications of this are serious, and extend far beyond child custody. The case involves a woman raising three children, two of whom are her own, with a man so physically abusive that he had caused her to have multiple miscarriages. In 2016, when the woman was around 4 months pregnant, an incident in the home (details are often scant in child abuse cases) resulted in severe injuries to one of the children. Both parents were charged with felony child abuse. The woman lost custody of her two children and some months later gave birth to a baby referred to in court documents as “Opal.”

In October, a court terminated the woman’s parental rights to Opal, in part because they determined that it had been “residing in the home” as a 4-month fetus where abuse of another child had taken place.

North Carolina law permits termination of parental rights to a child in the event that the child was living in the home when abuse occurred.

The woman appealed, arguing that this surprise definition of her 4-month-old fetus as a child “residing in the home” violated her right to due process. If the law was meant to apply to fertilized eggs, embryos and fetuses, it should say so. The North Carolina Court of Appeals disagreed.

In his opinion, Republican Judge Hunter Murphy cited a 1949 inheritance case to argue that “In North Carolina, it has long been held that ‘the life of a human being begins at the moment of conception in the mother’s womb.’”

This isn’t the first time courts have explored termination of parental rights during pregnancy. While conducting research for my forthcoming book, “The Pregnancy Police: Conceiving Crime, Arresting Personhood,” I researched a 2015 case from Alabama. A district attorney attempted to strip a woman of her parental rights to stop her from having an abortion. She was on probation when she discovered she was pregnant. She had been arranging to travel across the state for an abortion, but before she made it to the clinic, she failed a probation-ordered drug test and was put in jail.

The woman sought the aid of the American Civil Liberties Union to access her constitutionally protected right to abortion. In response, the DA filed a motion to terminate her parental rights and to appoint a legal guardian — for a first trimester fetus. Facing an immense amount of pressure and legal threats from the DA, she eventually dropped her request to have an abortion. The judge never ruled on the motion to terminate her parental rights.

The implications are alarming. If you can lose custody of a fetus during pregnancy, you could be prevented from having an abortion. You — or rather, your fetus — could be put in protective custody, resulting in your involuntary detention. You could be forced to accept certain medical interventions, and denied others. If fertilized eggs, embryos and fetuses are considered legally human, a pregnant person could be investigated or charged for virtually anything: eating a poppy seed bagel, taking prescription medication, failing to protect themselves from violence. Pregnancy loss could be investigated as homicide.

One need only look one state away for an illuminating example of how courts facilitate the “fetal personhood” creep. In South Carolina, “fetal personhood” crept from tort law, to criminal cases involving violence against pregnant people and harming the pregnancy, and then to criminalizing pregnant people in relation to their own pregnancies. Almost 200 people in South Carolina, most of them Black women, have been charged with crimes against their pregnancies for incidents including self-managed abortion, testing positive for drugs and attempting suicide.

Too often, these kinds of cases are overlooked because the pregnant people involved are perceived as immoral, or even villainous. By looking away, we are only allowing “fetal personhood” to become more ingrained in our legal system.