Putting the Fetus First — Legal Regulation, Motherhood, and Pregnancy

Abstract

The fetus-first mentality advocates that pregnant women and women who could become pregnant should put the needs and well-being of their fetuses before their own. As this Article will illustrate, this popular public perception has pervaded criminal law, impacting responses to women deemed to be the “irresponsible” pregnant woman and so the “bad” mother. The Article considers cases from Alabama and Indiana in the United States and from England in the United Kingdom, providing clear evidence that concerns about the behavior of pregnant women now hang heavily over criminal justice responses to women who experience a negative pregnancy outcome or who are perceived to have behaved in a way that could result in a negative outcome. This Article provides a new approach by bringing together a critical assessment of fetal protection laws with theories of motherhood ideologies and analyzing how such ideologies have resulted in legal developments not only in the US, where the fetus has been granted legal recognition in most states, but also in England and Wales, where the fetus continues to have no legal personality. The Article will conclude that the application of the fetus-first mentality within criminal law has resulted in dangerous legal developments that challenge women’s rights, while doing little to protect fetuses.