Legal Status of the Unborn

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American law has traditionally granted unborn children legal rights and protections which are essentially the same as those of people who have already been born. Unborn children have never had the same legal status as adults, of course, because there are important things that adults can do that unborn childen cannot, like speak intelligibly. But this is hardly something unique to the unborn: the law recognizes numerous distinctions based on age. A fifteen-year-old is not permitted to drive; a seventeen-year-old may not purchase alcohol; etc.

Most legal rights are controlled by state rather than federal law, so the exact legal status of the unborn varies from state to state. But let's look at a few examples from Ohio law. (Chosen for the simple reason that I live in Ohio and thus have copies of Ohio laws handy.)

Some examples from Ohio law

Ohio law carefully describes how a person's property is to be disposed of if he dies without a will. (Basically, the first $60,000 plus one-third of what's left to your spouse, the rest divided among your children. But there are all sorts of special cases.) According to Ohio Revised Code §2105.14, an unborn child has the same legal rights of inheritance as a born child. In the case of Ebbs v Smith in 1979, a women had said in her will that her estate was to be divided among various classes of relatives "living at the time of my death". The court ruled that this included a baby who was still in the womb at that time.

A classic problem in law is that, while children have legal rights, they are not normally capable of taking action to defend those rights, or even necessarily of knowing about them or understanding them. Thus, the child's parents -- or some other adult if the parents are dead or there are other special circumstances -- have the right and duty to act for the child. Thus, §2109.34 specifies that if an unborn child is part of a group of people who may inherit money or benefit from a trust, then those involved who are already born are expected to represent the unborn child's interests, and can be charged with fraud if they don't. The law goes on to say that if there is no one involved who can represent the unborn child, then the state attorney general shall take on this task.

In a similar way, §2307.131 deals with the situation where a lawsuit is brought in which an unborn child has an interest. The law says that a judge may appoint a "competent and disinterested person as trustee of the interest of such persons not yet born".

In both the above laws, the legislature thoughtfully provided that unborn children involved in lawsuits do not have to be sent copies of legal papers, as is normally required for born persons.

Ohio is not the only state with such laws, and indeed unborn children here in Ohio have fewer legal rights than in many other states.

A broader application

In 1986, Missouri passed a law which contained the blanket statement that unborn children in Missouri should have "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state". (They added, "subject to the Federal Constitution and Supreme Court interpretations thereof".)

This law was challenged in court, and ended up going all the way to the Supreme Court in the case of Webster v Reproductive Health. The Supreme Court upheld the law. They noted that it was no radical departure, writing, "State law has offered protections to unborn children in tort and probate law, see Roe v. Wade, supra, at 161-162, and §1.205.2 can be interpreted to do no more than that.".

An exception

Of course, there is one minor point on which unborn children do not have the same legal rights as others in any state in the union: they can be freely killed at any time through abortion.

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Written May, 1996. Posted 25 Jan 2001.

Copyright 1996 by Jay Johansen
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