Intentional Parenthood, Contingent Fetal Personhood, and the Right to Reproductive Self-Determination

Abstract

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. This proposition is not new. This Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non-gestating gamete contributors would do the same, to different legal effect. Establishing intent-based parenthood would end automatic legal parenthood. It would also clearly condition most legal rights that a fetus might enjoy on its gestator’s intent, and support other rights on the intent of other gamete-contributors. The article proposes a normative framework for the conceptions of legal parenthood and legal fetal personhood under an intentional approach. It further offers some preliminary suggestions regarding how an intentional approach could solve some latent, thorny issues in bioethics, family law, and civil rights.