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The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection

1986; The Yale Law Journal Company; Volume: 95; Issue: 3 Linguagem: Inglês

10.2307/796491

1939-8611

Dawn E. Johnsen,

Feminist Theory and Gender Studies

This decision is a social one, not dictated by biology.A scientific inquiry reveals only that the fetus is a living entity, as are the egg and the sperm that combine to form the fetus, which has the potential to develop into a recognizable person given approximately nine months of nurturing in the woman's womb.The legal status that society chooses to confer upon the fetus is dependent upon the goals being pursued and the effect of such status on competing values.In the course of defining the word "alive," Professor Arthur Leff offered an insightful and concise discussion of the relevant considerations in determining under what circumstances the fetus should be considered a legal person:Important to all these legal problems is the recognition that they are legal (and ethical) problems, dependent not on any deceptively 'natural' biological definition of life, but on social and legal decisions.In 'nature,' things just are; only people classify. . ..[Tihe relevant legal question ought not to be whether a foetus is 'alive' or 'a person' from the moment of conception, or the moment of viability, etc., as if the question were one of natural rather than social decision.A legal decision will still have to be made to whom the law ought to give protection and at what cost, paid by who[m] . ...