Recently, we discussed in one of our blogs that legal personality begins at birth. Does this mean that a fetus does not have legal personality for purposes of child custody, adoption, right to an inheritance, and other legal rights or relations?
In Roe vs. Wade (1973, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147), the court ruled that the state has an interest in “the potential of developing human life (a fetus) but it cannot intervene with the mother’s right to abort the pregnancy during the first and second trimester. The standard of viability — that is, after the point at which the fetus is capable of living outside the womb (which is from the 24th week of pregnancy) – was defined by the court.
In Planned Parenthood v. Casey (1992), the Court scaled back the viability standard from 24 weeks to 22 weeks. Gonzales v. Carhart (2007), the Supreme Court held that a ban on live intact D&X ("partial birth") abortions does not violate this standard.
The only treaty that specifically grants rights to fetuses is the American Convention on Human Rights of 1969, signed by 24 Latin American countries, which states that human beings have rights beginning at the moment of conception. The United States is not a signatory to this treaty.
What these court decisions are saying is that during the first and second trimesters, the mother’s right to abort prevails over the fetus since life is merely potential, but when the third trimester kicks in, states may uphold the rights of the unborn because the fetus has developed at an advanced stage. Meanwhile, until the child is born, it has no legal or constitutional rights.
Until the child is born, it has nothing but presumptive legal rights such as the right to an inheritance. For example, the father of the unborn dies without a will; it follows that the probate court will distribute his estate based on the laws on intestate succession. The deceased’s estate will be divided among his living heirs after all debts have been settled. Can the pregnant mother argue that her child is a legal heir and entitled to a share in the distributed property? No, because the child is unborn and legal personality begins only upon birth.
Can a person have guardianship over a fetus? Is it possible to adopt a fetus before it is born? Again, no because the child isn’t born. A person cannot have guardianship over an interest, the child must be born first, and the same thing holds true in the case of adoption. As soon as the child is born, then it acquires legal personality and capacity to be the subject of legal relations. In cases like these and for practical reasons, parents and interested parties usually take steps to prepare the documents to file in court even before the child born that way the paperwork is almost ready to go upon birth of the child.
In cases where the mother knows that Child Protective Services (CPS) will take the child upon delivery, she can accomplish a Child Caregiver Resource Form while pregnant. The Child Caregiver Resource Form gives CPS the names of at least three people (such as grandparents and other adult relatives) who might provide care, emotional support, or other support for the child while the parents receive services.
It is interesting to note though that although generally a fetus is not considered a person separate and distinct from the mother until born, in some jurisdictions, two counts of homicide are committed if a pregnant woman is attacked and it results in the loss of lives (hers and the fetus).
As we always say, laws vary from state to state and change over time. What is not valid today may be valid tomorrow and vice versa. If you want to know specific details about your state’s laws, consult a legal professional.
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