Whose Foetus Is It?

Abstract

The evolving literature on foetal and maternal rights has been mesmerized by the potential conflicts between them.3 Sometimes these interests do clash, but often they may coincide. Abortion laws recognize that a woman's interests may be allowed to override those of the foetus.4 But some recognition of foetal interests, such as enforced caesarians and even restrictions on access to lawful abortion, may indeed be quite antithetical to the woman's interest.5 The feminist response to an argument for the recognition of foetal rights draws heavily on Mary Anne Warren's assertion that 'there is room for only one person with full and equal rights inside a single human skin.'6 In this essay, we want to accord more thought to the inter-dependence and inter-connectedness of a woman and her foetus.7 The maternal/foetal rights debate seems confounded by the notion that a woman may, in addition to her interest in determining whether her pregnancy is terminated, have an equally compelling interest in ensuring the preservation of her foetus.8 This is not a promotion of foetal rights; we want to try to reformulate some of the arguments to take account of a neglected dimension of the pregnant woman's interest in her foetus.Our argument will suggest that the use of legal instruments serves to protect a woman's foetus from her, and her from her foetus; but that it does not protect her foetus from others.9 The law treats the pregnant woman as if she were not pregnant; in mirroring the treatment of gender more generally, the law regards the pregnant woman as invisible. Our argument falls into three parts. First, we consider what interests are affected by foetal injury (and/or death) and whether a woman has interests in the safety of the foetus she is carrying which should be accorded legal protection. Secondly, we explore the extent to which criminal law already recognizes those interests and examine the reasons given for the limited scope of protection offered. Finally, we suggest how a recharacterization of the