Fetal Rights Research Articles

No Happy Medium: The Role of Americans’ Ambivalent View of Fetal Rights in Political Conflict over Abortion Legalization

No Happy Medium: The Role of Americans’ Ambivalent View of Fetal Rights in Political Conflict over Abortion Legalization

Legal Causes and Council in Reproductive Health

To study Judicial determinants of the ordered obstetrical and fertility interventions. Nature, corresponding laws, decisions upon the 37 expounded holdings at the Probate, Trial, District, Appellate, and Supreme Courts are studied in 92 published materials identified through the ACOG, RCOG, SOCG portals, and Legal Scholarship Repository. Hearings are held in the US (83.8 %), Canada (10.8 %) and U.K (5.4 %). Of all the hearings reviewed, 27 % concern mentally impaired, 37.8 %-maternal incompetence, and 21.6 % cases are of criminal nature. The Judicial determinants vary from country to country. In Canada, the ordered medical interventions are effected by the child protection legislation, whereas in the US, by court orders. In majority of cases, orders are obtained by dismissing the patriae petitions for involuntary sterilizations of mentally impaired sui juris adults (57 %); coerced obstetrical interventions (33.3 %), fetal custody (50 %); enforcement of surrogacy contracts (62.5 %) in favor of the Common Humanity Benefit clause; and recognizing the rights to inherit in posthumously conceived children (80 %) pursuant to the Social Security Act, Law of obviousness, Law of inherent anticipation, and Intestacy statute. Current study prioritizes two questions: (1) whether it is justified to override the wishes of a competent patient purportedly in her best interests; and (2) whether the patient’s autonomy and competence is an absolute concept. With the law unsettled as to a woman’s right to assent a treatment and contradict her fetus, parties concerned with fetal rights should consider exercising of screening tools on maternal judgmental fitness jointly developed by medical and legal practitioners. Further, given the advances in gamete conservations, states consider enacting legislation in order to safeguard the orderly administration of estates disrupted by claims from posthumously conceived children. A balance must be struck between the child’s right to inherit, the state’s interest, as well as the interests of prior born children.

Court-visited obstetrical and fertility procedures

To study proposals and benefits of the court-visited obstetrical and fertility interventions. A total of 72 articles including 25 published decisions of the trial, circuit, appellate, and supreme courts are identified through the ACOG, RCOG, SOCG, and keyword search. The grounds of the hearings and their outcomes are modeled as measurable outcomes. The hearing counts are used as index units. Of the total adjudications reviewed, 28% are for criminal complaints and 72% for civil lawsuits. A substantial number of hearings (40%) concern mentally ill or impaired individuals. Among the hearings based on maternal-fetal conflicts, women's autonomy is preserved in 25%, fetal rights are favored in 75%, and the rights of both are addressed in 6.25% of cases. Orders in favor of fetus are executed by coerced C-sections (20%), fetal custody (20%), and termination of parental rights (16%). The burden versus benefit ratio is 0.67 in the reviewed sample of coerced C-sections; 83.4% of the orders for involuntary sterilizations of mentally impaired are dismissed in favor of the constitutional rights (Amendments 1, 9, 14) and state mental health laws. Court-ordered obstetrical procedures present an unsettled legal forum in terms of their complex interplay. The awareness of legal precedent can alert providers to possibility of an exception to the general presumption that the mother is competent, where it might trigger a legal or ethical council. Screening inventories (covering maternal-fetal attachment, judgmental fitness, prior obstetrical history, perinatal risk, formal/informal social support) jointly developed by the health providers and lawyers would assist involved parties in resolving complex situations without resorting to legal conflicts.

Ourselves unborn: a history of the fetus in modern America

INTRODUCTION: FETAL STORIES 1. Discovering Fetal Life, 1870s-1920s 2. Interpreting Fetal Bodies, 1930s-1970s 3. Defining Fetal Personhood, 1973-1976 4. Defending Fetal Rights: 1970s-1990s 5. Debating Fetal Pain, 1984-2007 EPILOGUE: FETAL MEANINGS NOTES BIBLIOGRAPHY

Fetal Sentience and Women's Rights

Fetal Sentience and Women's Rights

A Jurisprudential Analysis of the Fundamental Rights of Fetus (an Unborn Child) Under the Conventional and Islamic

The paper examines the right of an unborn child generally. More often the rights which were given on paper were not actually given to the people in real life. In the middle of the present century, the United Nations, made a Universal Declaration of Human Rights, and passed a resolution against genocide and framed regulations to check it. There are other instruments on the protecting human rights i.e. European Convention on Human Rights and African Charter on Human and Peoples Rights etc. However the divinity of human rights provisions in the Holy Quran and Sunnah as against the rights every mankind is entitle as of right, is not based solely on the fact that one is a Muslim faithful or non-Muslims but for being human and rationale is significant. This is evidently shown in shariah as Islam is a religion not addressed to a particular section, but a religion of the whole world as stated in the Quran when Allah told the prophet that: We have not sent you O! Mohammed except as a mercy to mankind… Thus the paper argued that an unborn child at enjoy some rights while in the womb of the mother and when delivered alive.

The professional responsibility model of obstetrical ethics: avoiding the perils of clashing rights

Obstetric ethics is sometimes represented by polarized views. One extreme asserts the rights of the fetus as the overwhelming ethical consideration. Another extreme asserts the pregnant woman as the overwhelming ethical consideration. Both assertions are overly simplistic. Such oversimplification is called reductionism. This article explains the fallacy of rights-based reductionism and 2 models of obstetric ethics based on it and explains why the fetal rights reductionism model and the pregnant woman's rights reductionism model result in conceptual and clinical failure and therefore should be abandoned. The article argues for the professional responsibility model of obstetric ethics, which emphasizes the importance of medical science and compassionate clinical care of both the pregnant and fetal patient. The result is that responsible medical care overrides the extremes of clashing rights.

An Ethically Justified Framework for Clinical Investigation to Benefit Pregnant and Fetal Patients

Research to improve the health of pregnant and fetal patients presents ethical challenges to clinical investigators, institutional review boards, funding agencies, and data safety and monitoring boards. The Common Rule sets out requirements that such research must satisfy but no ethical framework to guide their application. We provide such an ethical framework, based on the ethical concept of the fetus as a patient. We offer criteria for innovation and for Phase I and II and then for Phase III clinical trials to improve the health of pregnant patients and of fetal patients and also criteria to responsibly manage the transition from investigation to clinical practice. Basing ethical criteria for research involving pregnant women on the ethical concept of the fetus as a patient insulates the proposed ethical framework and therefore research on pregnant women from the divisive and politicized concepts and discourses of personhood, fetal rights, and unborn child.

In Spite of Deference: Advocacy-Group Dialogue and the Changing Meaning of Roe V. Wade, 1973-1980

In the legal academy and the Supreme Court, debate about Roe v. Wade has been structured by a particular historical account of the decision’s immediate impact on politics. The Court’s decision is argued to have surprised and angered a large segment of the public. Because of this outrage, citizens protesting the opinion argued that the Supreme Court had no authority to issue constitutional decisions on abortion. Popular groups contended that Roe itself had no constitutional force. Partly for these reasons, popular groups made demands for interpretive authority central to their reform agenda. This historical narrative about Roe powerfully shapes several current debates about the decision’s merits and impact. In discussion about Roe’s reasoning, popular resistance is argued to reflect the substantive shortcomings of the decision. A conventional historical account of Roe’s impact also structures debate about the Roe Court’s mode of decision-making. Critics of Roe use popular defiance as evidence that Roe decided too much too soon, while scholars supportive of the opinion view popular resistance to the Roe Court as constructive, a demand that constitutional law be democratically responsive. However, this Article shows that the conventional narrative of Roe’s impact is deeply flawed. For the most part, before 1980, antiabortion groups agreed that Roe had constitutional force unless an amendment could be passed to overrule it. Moreover, popular demands for interpretive authority were not central to antiabortion advocacy before 1980. Most attention went to statutes and constitutional-amendment proposals that at most modified the medical frame used in Roe, demanding recognition for the rights of fetuses as patients. It is true that debate between advocacy groups did eventually produce a popular interpretation of Roe that differed radically from the text of the original opinion, an interpretation focusing on women’s rights rather than those of physicians. By the late 1970s, this interpretation had won support from organizations on both sides of the debate. However, this form of popular involvement did not involve rejection of the Supreme Court’s’ authority. Instead, over time, often without explicitly trying to influence the Court, advocacy groups forced one another to adopt interpretations of Roe more closely resembling the one that is dominant today. The historical narrative shaping current discussion of abortion neglects these developments. To the extent that it relies on a flawed account of Roe’s history, contemporary debate should be reframed.

Promoting Fetal Personhood: The Rhetorical and Legislative Strategies of the Pro-Life Movement after Planned Parenthood v. Casey

The article examines the pro-life movement's efforts to advance the legal, moral, and political arguments for fetal personhood in the period following the Supreme Court's case Planned Parenthood v. Casey . It begins with an overview of the efforts to define the fetus as a legal person prior to Casey , and proceeds to describe the opportunity created for pro-life forces by the court's ambiguous holding on the issue of personhood.Examining rhetorical and legislative strategies, the article argues that pro-life forces have transformed their framing of the abortion issue, from one that pits fetal rights against maternal rights, to one that emphasizes the unique and intimate bond between the woman and the "child." This rhetorical shift coincides with legislative agendas that indirectly attack the central claim of mainstream pro-choice activists: That the fetus is not a person. The article examines the imagery used by pro-life activists and the substantive statutory reforms they advocate. By casting the relationship between woman and fetus as nonadversarial and pursuing legislation expanding the rights of the fetus, such activists have been effective in establishing indices of fetal personhood. The article contends that these strategies are effective and serve to undermine the rhetorical and legal foundations of the abortion right.

DEEPER PROBLEMS FOR NOONAN'S PROBABILITY ARGUMENT AGAINST ABORTION: ON A CHARITABLE READING OF NOONAN'S CONCEPTION CRITERION OF HUMANITY

In 'An Almost Absolute Value in History' John T. Noonan criticizes several attempts to provide a criterion for when an entity deserves rights. These criteria, he argues are either arbitrary or lead to absurd consequence. Noonan proposes human conception as the criterion of rights, and justifies it by appeal to the sharp shift in probability, at conception, of becoming a being possessed of human reason. Conception, then, is when abortion becomes immoral. The article has an historical and a philosophical goal. The historical goal is to carefully present the probability argument in a charitable manner. The philosophical goal is to offer a unique criticism of Noonan's probability argument against abortion. I argue that, even on a very charitable reading of Noonan's argument for the conception criterion, this criterion is also susceptible to charges of arbitrariness and absurdity. Noonan's claim that probability shifts have anything to do with the moral rights of fetuses cannot be made coherent. I also show that there are problems with Noonan's assumptions about moral rights and the potential to become a being possessed of human reason.

POST-ABORTION SYNDROME: CREATING AN AFFLICTION

The contention that abortion harms women constitutes a new strategy employed by the pro-life movement to supplement arguments about fetal rights. David C. Reardon is a prominent promoter of this strategy. Post-abortion syndrome purports to establish that abortion psychologically harms women and, indeed, can harm persons associated with women who have abortions. Thus, harms that abortion is alleged to produce are multiplied. Claims of repression are employed to complicate efforts to disprove the existence of psychological harm and causal antecedents of trauma are only selectively investigated. We argue that there is no such thing as post-abortion syndrome and that the psychological harms Reardon and others claim abortion inflicts on women can usually be ascribed to different causes. We question the evidence accumulated by Reardon and his analysis of data accumulated by others. Most importantly, we question whether the conclusions Reardon has drawn follow from the evidence he cites.

Technology takes on deadlines for fetal human rights

Technology takes on deadlines for fetal human rights

Republican Motherhood Redux?: Women as Contingent Citizens in 21st Century America

ABSTRACT This article examines the re-emergence of republican motherhood, once used to define the unique and conditional relationship between women and the state in the nineteenth century. By examining recent developments in federal and state abortion policy, I reveal the current trend toward “devolving” women's social and political citizenship rights to the states, where they will once again be highly variable and often contingent upon women's mothering status. Alternatively, these same policy developments demonstrate the simultaneous nationalization of fetal rights and a language of fetal citizenship or patriotic natalism. While women's citizenship becomes contingent upon the caprices of local power structures, fetal citizenship emerges as a uniform, national concept.

At the Horizons of the Subject: Neo-liberalism, neo-conservatism and the rights of the child Part One: From ‘knowing’ fetus to ‘confused’ child

The inability of the child to represent his or her own interests as a legal subject (by definition), and the continued interest of the state in the child as a futurity or resource locks the child in an eternal pas de deux: the child continually approaches the possibility of ‘personhood’ but never achieves it. In the past 40 years, in western nations the child's legal personhood has been simultaneously invoked and constrained: through a growing array of persons and organizations that, as an exteriority, purport to ‘best represent the child’; and through an ever more finely gradated mapping of the child's interiority—which filters the child's voice through a range of interpretive theories, and mechanisms. In this myopic and hyperopic reading of the child, the child's voice disappears. This paper is the first of two examining the relationship of the child to the liberal notion of the subject. In the case law explored around fetal rights and custody issues in the United States and elsewhere we find a paradoxical situation where the ‘fetus’ is granted a more authoritative voice in terms of what it ‘wants’ than is the child, whose wishes are perpetually called into question. Together these papers raise questions about the nature of the subject qua individual. They highlight the potential for a ventriloquist discourse around the child whereby neo-liberal and neo-conservative groups that purport to speak for the child mobilize their own political interests.

Grace's story: an analysis of ethical issues in a case of informed consent

Maternity care in New Zealand, a contemporary Western society, is provided by self-employed midwives, hospital employed midwives and/or medical practitioners. Midwifery practice is governed by the New Zealand College of Midwives Code of Ethics (2005) which places importance upon the establishment of a relationship and partnership with the woman. This assists with upholding maternal autonomy, informed choice and maternal decision-making. However, at times this can result in a dilemma for midwives and medical practitioners when the woman makes a decision that could pose risks to the fetus. Three principal ethical themes are drawn from a narrative: maternal versus fetal rights where the definition of the fetus is explored and whether the fetus has any legal rights; preservation of maternal autonomy and the dilemma encountered by the midwife and obstetrician with their mutual need to prevent harm to the fetus, while appreciating the need to inform and respect maternal decision making; the midwife–woman relationship and the significance of the midwife advocating for the woman. These ethical themes are also discussed regarding implications for future practice. Grace's story explores the paradigm shift in maternity services in New Zealand, which occurred at the end of the 20th century. A feminist ethic of care from a midwifery perspective is discussed and the universal principles upon which obstetricians and the New Zealand College of Midwives base ethical decision making and codes of practice is explored.

Incapacity to consent

The law regarding consent is well established, and most midwives will be entirely familiar with it. O'Boyle (2006) notes that there is a plethora of guidance supporting practitioners when considering this topic. Midwives mainly deal with women who are mentally competent and the question of over-ruling a woman's stated wishes rarely arises, at least not explicitly. However, there are those who claim that both ‘informed choice’ and ‘informed consent’ are myths in contemporary maternity care (Robertson, 2003). There is an argument which claims that the ‘obstetric police’ are determined to over-rule the expressly stated wishes in favour of ‘fetal rights’ (Meredith, 2005), although most of the supporting evidence for this derives from the USA and not the UK.

Ethical Considerations Regarding Pregnancy in Chronic Kidney Disease

Pregnancy in the context of chronic kidney disease (CKD) is a daunting clinical scenario for both health-care providers and patients and raises ethical and social questions that have important implications for health policy and funding. Despite potential problems, women with CKD will continue to conceive and deliver babies, and nephrologists will be faced with the challenge of caring for them. This paper discusses ethical issues regarding pregnancy in CKD and highlights the controversies surrounding parental, fetal, and societal rights.

Abortion in Democratic Spain: The Parliamentary Political Agenda 1979–2004

Since Spain's transition to democracy, abortion has been a public policy issue both inside and outside parliament. This paper describes the history of abortion law reform in Spain from 1979 to 2004 and analyses the discourse on abortion of members of the Spanish parliament by sex and political allegiance. The analysis is based on a retrospective study of the frequency of legislative initiatives and the prevalence of different arguments and positions in debates on abortion found through a systematic search of the parliamentary database. Little time was given to abortion in the parliamentary agenda compared to other women's issues such as violence against women. There were 229 bills and other parliamentary initiatives in that period, 60% initiated and led by pro-choice women. 143 female and 72 male parliamentarians took part in the debates. The inclusion of socio-economic grounds for legal abortion (64%), and making abortion on request legal in the first 12 weeks of pregnancy (60%) were the most frequent forms of law reform proposed, based most often on pro-women's rights arguments. Male and female members of anti-choice parties and most male members of other parties argued for fetal rights. Pro-choice parties tabled more bills than anti-choice parties but till now all reforms proposed since 1985 have been voted down.RésuméDepuis la transition de l'Espagne vers la démocratie, l'avortement est une question politique à l'intérieur et à l'extérieur du Parlement. Cet article retrace l'histoire de la réforme de la législation sur l'avortement en Espagne de 1979 à 2004 et analyse le discours des députés espagnols, par sexe et appartenance politique. L'analyse est fondée sur une étude de la fréquence des initiatives législatives et de la prévalence des différents arguments dans les débats sur l'avortement, effectuée à l'aide d'une recherche systématique dans la base de données parlementaire. Les travaux parlementaires ont consacré peu de temps à l'avortement par comparaison à d'autres questions intéressant les femmes, comme la violence contre les femmes. On a recensé 229 propositions de lois et autres initiatives parlementaires pendant cette période, dont 60% lancées et dirigées par des femmes favorables à l'avortement. Parmi les députés ayant participé au débat, il y avait 143 femmes et 72 hommes. L'inclusion de motifs socio-économiques pour l'avortement légal (64%) et la légalisation de l'avortement pendant les 12 premières semaines de grossesse (60%) étaient les propositions les plus fréquentes, basées le plus souvent sur le droit des femmes à choisir. Les membres masculins et féminins de partis opposés à l'avortement et la plupart des membres masculins d'autres partis militaient pour les droits du fłtus. Les partis pour le libre choix ont présenté davantage de propositions de loi que les partis contre l'avortement, mais, depuis 1985, toutes les réformes ont été refusées.ResumenDesde la transición de España a la democracia, el aborto ha sido asunto de políticas públicas dentro y fuera del parlamento. En este artículo se describe la historia de la reforma de la ley de aborto en España desde 1979 hasta 2004, y se analiza el discurso sobre el aborto por parte de los parlamentarios españoles, por sexo y afiliación política. El análisis se basa en un estudio retrospectivo de la frecuencia de iniciativas legislativas y la prevalencia de diferentes argumentos y posiciones en debates sobre aborto, encontradas mediante una búsqueda sistemática en la base de datos parlamentaria. No se dedicó mucho tiempo al aborto en la agenda parlamentaria, comparado con otros asuntos relacionados con las mujeres, como la violencia contra éstas. Hubo 229 iniciativas parlamentarias en ese período, el 60% iniciadas y dirigidas por mujeres por el derecho a decidir; 143 diputadas y 72 diputados participaron en los debates. La aceptación de motivos socioeconómicos para tener un aborto legal (64%) y la legalización de la práctica de abortos a petición en el primer trimestre del embarazo (60%) fueron las formas más frecuentes propuestas para reformar la ley, principalmente a raíz de argumentos referentes a los derechos de las mujeres. Hombres y mujeres afiliados a partidos contra el derecho a decidir, y la mayoría de los hombres afiliados a otros partidos abogaron por los derechos del feto. Los partidos por el derecho a decidir presentaron más proyectos de ley que aquellos en contra, pero hasta ahora, se ha votado en contra de todas las reformas propuestas desde 1985.

女性主義倫理與香港的墮胎問題

女性主義倫理與香港的墮胎問題