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.

Australian news media portrayals of filicide: depictions of mental health and the flawed mother trope

“…A deviation from 'acceptable' gendered behaviour has been identified as a perceived threat to social structures that could encourage negative labels and perpetuate the stigmatisation of men and women who offend (McCluskey, 2019;Noh et al, 2010;Stangle, 2008). Stangle (2008) and Milne (2020) acknowledge that the ideals of traditional mothers and femininity are often linked in patriarchal societies. The dominance of this perception is demonstrated through 'discussion of violent women often focus [ing] heavily on what it means to be female, and the criminal act in question fades into the background' (Stangle, 2008, p. 707).…”

Abortion Access and the Benefits and Limitations of Abortion-Permissive Legal Frameworks: Lessons from the United Kingdom

“…105 In these cases, the people who have done so are often in very vulnerable circumstances and the use of the criminal law to respond has been strongly criticised. 106 In 2021, a new mother was charged with procuring miscarriage when doctors found what they believed to be misoprostol in her body while she was in hospital for delivery. She explained that she had been previously prescribed them and had accidentally taken them believing them to be anti-thrush medications.…”

Assisted gestative technologies

“…Huge expectations are placed on gestating people in terms of 'public ownership' of gestation, 37 and subsequently of appropriate behaviour in pregnancy. 38 In western cultures, pregnancy excludes embodied privacy; details of one's physical self/ condition become perceived as public knowledge; strangers routinely ask questions of the duration of gestation, of fetal sex, and to touch the 'bump'. 39 Medical and social recommendations about how to behave during pregnancy abound xiv Where gestation is sustained by a pregnancy the gestating entity is not a unique organism because it remains a part of the pregnant person's body (Kingma 2019).…”

“…The materiality of the body is also altered in a cultural sense. Huge expectations are placed on gestating people in terms of ‘public ownership’ of gestation,37 and subsequently of appropriate behaviour in pregnancy 38. In western cultures, pregnancy excludes embodied privacy; details of one’s physical self/condition become perceived as public knowledge; strangers routinely ask questions of the duration of gestation, of fetal sex, and to touch the ‘bump’ 39.…”