MEMO: The growing threat of “fetal personhood” measures across the country

TO: Interested Parties

FROM: Planned Parenthood Action Fund

DATE: February 29, 2024

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Earlier this month, the Alabama Supreme Court issued a ruling declaring that, under the state’s wrongful death statute, a “minor child” includes embryos — even frozen embryos that have not yet been implanted into a uterus. That decision, LePage v. The Center for Reproductive Medicine, P.C., has created chaos and confusion for IVF patients across the state as their providers paused services. While the court’s decision came as a shock to many, it is the clearest demonstration yet of the many ways “fetal personhood” laws threaten reproductive health care nationwide. Anti-abortion groups and lawmakers have never been satisfied with overturning Roe v. Wade. From the Life at Conception Act in Congress to failed ballot initiatives in Mississippi and Colorado, for more than 40 years, they’ve tried to codify the dangerous idea that from the moment of fertilization, an embryo or fetus should be legally recognized as a person with constitutional rights.

So-called “personhood” laws were first introduced to ban abortion, and already this year, personhood abortion bans have been introduced in Kansas, Missouri, and South Carolina. Fetal personhood language, however, shows up not just in bans or in wrongful death statutes like Alabama’s. For decades, under the guise of supporting families and pregnant people, abortion opponents have also tried to embed this language in health care bills, the tax code, and critical safety net programs. The real effect of “personhood” language is clear: denying people the freedom to control their own bodies and lives.

State-level fetal “personhood” attacks

 So far during the 2024 session, more than 40 bills with personhood language have been proposed in 16 states. These bills fall into a range of categories:

• Child Support: These bills typically allow a person to seek and receive child support at any point during pregnancy, sometimes modifying the existing law to make clear that a child can be an “unborn child.” For example, a Kansas bill, SB 425, which would allow pregnant people to claim child support any time after conception, is being considered. The measure would change the statutory definition of “child” to include any embryo, “in utero, at any stage of gestation.” Similar legislation has also been introduced in Kentucky, Mississippi, and Missouri. A Georgia law granting child support benefits to fetuses took effect in 2022. It was originally passed as part of legislation that included a six-week abortion ban.
• Tax credit: These bills typically allow a taxpayer to claim a fetus as a dependent child throughout pregnancy. States with pending legislation in this category this year include Indiana, Kansas, Oklahoma, and Wisconsin. 
• Wrongful Death, Battery, and Civil Liability Charges: These types of bills allow family members to seek damages or bring a cause of action over the death of an “unborn child.” While in many states people can seek damages arising from the loss of a pregnancy, many laws include limitations to ensure that the right of action is only narrowly available, and cannot apply to legal medical care, like abortion or IVF. When used to advance personhood, however, these bills provide the same breadth of rights for embryos or fetuses as to children and often say nothing about the application of such laws to health care for pregnant people. Bills similar to the wrongful death statute used in the Alabama decision are under consideration in Florida, Iowa, and Oklahoma this session.
• Fetal Homicide Statutes: These types of bills treat fetuses as victims under certain state criminal laws. Unlike personhood-based criminal abortion bans, these laws typically focus on specific crimes, including homicide, assault, DUIs resulting in death, and more. Like with wrongful death bills, these bills are framed around the fetus as the victim of a crime, rather than supporting parents. Several states, including Utah and Oklahoma, have already enacted this type of legislation. Others have attempted a more narrow approach by explicitly exempting abortion and/or a pregnant person from potential criminal liability under the law, which can reduce the harm of these bills. States with pending legislation taking this approach include New York and Vermont (both bills contain explicit exceptions for abortion).
• Temporary Assistance for Needy Families (TANF) Eligibility: These efforts would make pregnant people eligible for the same cash assistance given to people with children by treating a fetus as a child in the household. Mirroring the approach described in wrongful death and fetal homicide bills, these bills frame benefits eligibility around the fetus rather than providing benefits to the pregnant person on the basis of their pregnancy. A bill like this was enacted in Oklahoma last legislative session.

Federal “personhood” legislation 

Similar to what we’ve seen on the state level, anti-abortion members of Congress have pushed ”fetal personhood” attacks for years, and fights are expected to continue this spring. Federal lawmakers trying to ban abortion have tried to embed personhood language in maternal health bills, birth control bills, tax codes, child support laws, college savings plans, COVID-19 relief packages, and essential safety-net programs like Temporary Assistance for Needy Families. And they aren’t stopping. Like other personhood attacks, if taken to its most extreme, this language could affect birth control — including the pill, IUDs, and emergency contraception.

Currently, 125 members in the House, including Speaker Mike Johnson, support the Life at Conception Act, a federal personhood bill that would extend all inalienable rights afforded to Americans by the Constitution to apply at all stages of life, including to fetuses and embryos. Last year, during the first full Congress since Dobbs, as many as 166 members signed on as co-sponsors.

This attempt to legally define when personhood begins would make all abortion illegal nationwide. And, like the legislation proposed at the state level, would have grave implications for a range of sexual and reproductive health care, including some forms of contraception, infertility treatment, and miscarriage and ectopic pregnancy management. This language could also, in some circumstances, subject health care providers to criminal charges. “Personhood” language in our federal code would take away people’s ability to make safe and healthy choices about their reproductive futures and well-being. 

Far-reaching Consequences of Fetal Personhood

Supporters of fetal personhood are lying about their real motives to continue their assault on our fundamental freedoms and our ability to decide if, when, and how to grow our families.   

We cannot know what lawmakers and courts will try to do next. But we have already seen how personhood laws are applied to criminalize pregnant people — particularly Black, Latino, and Indigenous women, trans and nonbinary people due to systemic racism — and to limit our reproductive health decisions. According to Pregnancy Justice, between 2006 and the end of Roe v. Wade, nearly 1,400 pregnant people were arrested for allegedly endangering “unborn life.” When personhood language is in criminal codes, it can be used to investigate and criminalize pregnant people and their medical providers, especially when the person has experienced a negative pregnancy outcome like stillbirth or miscarriage.

These laws are not about supporting pregnant people. From paid family and medical leave to expanding Medicaid to mandating that employers provide reasonable accommodations for pregnant employees, there is a long list of measures lawmakers could enact to make a substantive and positive change in people’s lives. Instead, they are purposefully sowing confusion and slowly chipping away at people’s rights to make reproductive health decisions.

Purporting that a fetus has the same rights as a child creates chaos in the law, undermines the rights of pregnant people, and can prevent people from building the families they want. “Personhood” laws particularly subjugate pregnant people in the eyes of the law, effectively giving the government full control of that person’s body. Legislative tactics and messaging of the fetal personhood movement may change, but the goal is the same — to control people’s bodies, limit their health care choices, and criminalize people for having abortions.

If you are interested in learning about the Alabama IVF ruling or fetal personhood laws at the state and federal levels, please reach out to [email protected].