Fetal personhood rulings could nullify a pregnant patient’s wishes for end-of-life care
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April 08, 2024
Jessica L. Waters, Assistant Professor of Justice, Law & Criminology, American University -
The Conversation
The Alabama Supreme Court handed down an unprecedented decision in February 2024, holding that stored frozen embryos created for in vitro fertilization, known as IVF, were “minor children” under a state wrongful death law.
The impact on the medical community was immediate and acute. Fearing newfound civil or criminal legal liability if embryos were now considered “persons” under Alabama law, IVF clinics had to make an overnight choice between providing patient care and risking that liability. As a result, multiple IVF clinics across the state immediately suspended IVF procedures. And the most direct impact, of course, was on patients.
As reproductive rights law and policy researchers – and women of reproductive age – we fear that, as fetal or embryonic personhood debates continue, medical providers will face an increasing number of new situations in which they have to balance legal liability and patient welfare.
These conflicts are already playing out in the abortion context, but another looming example is flying under the radar: whether a doctor will be able to honor a patient’s end-of-life wishes if she is pregnant.
Many OB-GYNs navigating this maze now practice with the looming fear of civil or criminal liability if they run afoul – even unwittingly – of rapidly changing state laws and judicial or prosecutorial interpretation of those laws. These fears are not unfounded: States’ attorneys general have threatened to prosecute doctors who provide medically necessary abortion care or who help a patient in a state with an abortion ban obtain an out-of-state abortion. Indeed, pregnant women have been criminally charged for miscarriage.
These balancing acts are even playing out when pregnant patients are in emergency situations.
A January 2024 study detailed these conflicts across 13 states. It found that following the Dobbs decision, OB-GYNs delayed providing clinical care to pregnant patients – even in emergency situations – for fear of liability under newly ambiguous state laws.
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