The Question of Female Personhood

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Meghan Boone 

The question of whether embryos and fetuses are legal “people” is unlikely to be definitively answered anytime soon. While the movement for fetal personhood has steadily gained traction in the last fifty years, there is still a great deal of disagreement concerning the point at which full legal personhood should attach to prenatal life, if ever. What is increasingly certain, however, is that if the national conversation regarding abortion rights centers on fetal personhood, then those who seek to protect the full legal and social equality of women have already ceded too much ground. In plain terms, if the battle is all about fetal personhood, people capable of pregnancy have already lost the war.

To be clear, this is not because advocates for fetal personhood necessarily have a “winning” argument, either legally or morally. But it seems clear that by framing the conversation primarily around the question of fetal personhood, there are a number of consequences that result – each of which is detrimental or even lethal to claims for reproductive autonomy and women’s equality.

First, focusing on the question of fetal personhood incorrectly implies that the relevant question is a binary one – either embryos and fetuses are legal persons (and thus have moral worth), or they are not (and are worthless). This places reproductive justice advocates in the uncomfortable position of arguing the latter – even if such a position is not intended or reflective of their actual beliefs. While lawyers and academics may be able to separate “moral worth” from “full legal personhood,” the popular debate around fetal personhood invariably does not. Of course there are other, compelling and non-binary options such as the concept of “subjective fetal personhood,” developed by Greer Donley and Jill Wieber Lens, which allows for, but does not require, the personification of the fetus by the pregnant person (and only the pregnant person).  But this idea is both difficult to translate into quippy political slogans and to insert into a conversation that has become increasingly black and white. In the current cultural and political landscape, centering the conversation of reproductive rights on the question of fetal personhood leaves very little room for contextual or nuanced arguments, seemingly leaving the possible answers to whether the fetus is a legal person – and thus whether abortion should be legally permissible or not – as only “yes” or “no.”

Second, by focusing the conversation on the personhood of the fetus, the basic personhood of the pregnant person is at best obscured and at worst erased entirely. As I have argued in prior work with my co-author Ben McMichael, our moral and legal thinking is predicated on the concept of the autonomous, physically distinct individual. Our shared conceptual frameworks do not allow – indeed cannot imagine – two people occupying the same physical body. Therefore, endowing the fetus with full legal personhood necessarily results in the loss of personhood for the pregnant person. Two people cannot exist in one body, so if the fetus is a person, then the pregnant person must be something else: an object, a container for the fetal “person” who is properly the subject of legal and moral concern. One need only look at popular visual depictions of the fetus within the movement for fetal rights – often free-floating in an empty, undefined blank space – to recognize how invisible the pregnant person has become.   

Finally, even if advocates for fetal personhood are willing to acknowledge the existence of the pregnant person, the centering of fetal personhood automatically turns her into a particular type of person. If the fetus is a child, then we assume the pregnant person is a mother. And as a mother, she is subject to the full weight of cultural and legal expectations that then apply. First and foremost among these expectations is that she will act with complete selflessness in the service of the fetus/child. We expect that mothers will, by definition, do anything for their children. So forceful is this expectation that if an individual acts in a contrary fashion, the assumption is often she has somehow been misled or is confused. The abortion seeker must be coerced, tricked, or misinformed because mothers do not harm their children. The wishes of the brain dead pregnant woman, expressed through her advance directive, can be ignored because mothers would do anything for their children. A pregnant person suffering from life-threatening complications can be allowed to bleed out or go septic before we provide her with care, because we assume that is the choice she herself would make.  So confident are we in the ubiquity of maternal selflessness, the law can ignore perceived maternal selfishness or “correct” it through force. Resistance to the maternal role is incomprehensible and thus invisible.

As a result, if the legal status of fetuses continues to be the focus of conversation and debate, the legal status of women will increasingly also be up for debate. They will be invisible – erased entirely or visible only so far as they conform to expectations of maternity. While advocating that women are not (or should not) be full and equal participants in social and political life has rightfully been seen as a fringe idea for most of the last several decades, these ideas have now become increasingly mainstream. It is no accident that this parallels the rise in the fetal personhood movement. Fetal personhood is a powerful vehicle for those that seek to undermine women’s equality for the reasons I’ve stated here. It is an effective weapon against women’s equality because it necessarily erodes that equality while never speaking about women directly at all. But by focusing on the personhood of the fetus, the humanity of women is made invisible and/or irrelevant to the conversation. Thus, advocates must recognize arguments about fetal personhood for what they are – arguments against women’s equality.

Ultimately, the question is not about fetal personhood, but female personhood – and it is a distressingly open one.

Meghan Boone is Professor of Law at Wake Forest University School of Law. you can reach her by e-mail at boonem@wfu.edu.