The landscape of reproductive rights and family law in the United States is undergoing a profound and unprecedented transformation. At the center of this legal earthquake is a concept known as Fetal Personhood.
While it may sound like an abstract legal theory, personhood efforts in state legislatures and courtrooms are quickly moving from political ideology to concrete law, carrying radical implications that threaten to upend established legal practices in family law, inheritance, and, most critically, fertility medicine.
Fetal personhood is a legal designation that seeks to grant a human fetus, and in many legislative proposals, an embryo or zygote, all the rights and protections afforded to any born person under the Constitution and state law. The goal is to define human life—and thus, full legal personhood—as beginning at the moment of conception (fertilization).
If successful, this simple redefinition of “person” has cascading, often unintended, consequences that reach deep into the fabric of American family and medical law, fundamentally altering how the legal system treats pregnancy, parenthood, and assisted reproductive technologies.
The Legal Architecture of Personhood
Defining the “Person”
The core of the personhood movement is a direct challenge to previous legal standards. Historically, the law, including the Supreme Court’s pre-Dobbs jurisprudence, generally did not recognize a fetus as a “person” with full legal rights. Rights and protections were often established based on milestones like “quickening” (when movement is first felt) or “viability” (the ability to survive outside the womb).
Fetal personhood laws eliminate these distinctions. By legally declaring a fertilized egg a “person,” these laws attempt to bestow upon it the same rights under the Fourteenth Amendment—including the right to life, due process, and equal protection—as a child, a teenager, or an adult.
Following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and eliminated the federal constitutional right to abortion, the authority to regulate abortion and prenatal life returned to the states. This legal vacuum has energized the personhood movement, allowing it to embed itself in state constitutions, statutes, and judicial interpretations with unprecedented speed.
The Impact on Family Law
While the movement’s primary political objective is to ban abortion, its most legally chaotic consequences lie in areas far removed from reproductive choice, particularly within family law.
1. Wrongful Death Claims: The Embryo as a Legal Heir
One of the most immediate and impactful areas is wrongful death law. State laws allow family members to sue for damages when a loved one dies due to negligence or malice. By recognizing an embryo or fetus as a “person,” personhood laws instantly create a potential cause of action for the “wrongful death” of a non-viable fetus, or even a fertilized egg, that is accidentally or negligently destroyed.
The stark reality of this was demonstrated in the 2024 Alabama Supreme Court ruling, LePage v. Center for Reproductive Medicine, P.C., which found that frozen embryos constituted “unborn children” under the state’s Wrongful Death of a Minor Act. This decision opened fertility clinics and hospitals to massive civil liability for the accidental loss of any embryos, even those stored in a lab—a liability risk that prompted many clinics in the state to immediately suspend in vitro fertilization (IVF) treatments.
The implications for negligence and tort law are staggering:
- Car Accidents: If a pregnant woman is in a car accident caused by a negligent driver and suffers a miscarriage, a wrongful death claim could be filed on behalf of the lost “person.”
- Workplace or Environmental Hazards: A pregnant individual could file a wrongful death lawsuit against an employer or company whose negligence (e.g., exposure to toxins) resulted in a negative pregnancy outcome.
- Inheritance: In some legal theories, a fetus could be considered a beneficiary, potentially upending wills, trusts, and estate planning before birth.
2. Prenatal Child Support Obligations
Another critical area is child support. The legal obligation of parents to financially support their minor children typically begins at birth. Personhood efforts, however, are pushing to commence this obligation earlier.
In Georgia, for example, a law allows a pregnant individual to claim a fetus as a dependent on state income taxes and to file for prenatal child support. If a fetus is a legal “person” from conception, the father could potentially be ordered to begin paying child support to the pregnant mother months before the child is born.
This creates numerous practical and legal dilemmas:
- Duration of Obligation: Does the clock for child support start at conception?
- Paternity Issues: Paternity must be established legally, but would a man be required to pay support for an alleged fetus before a DNA test can confirm parentage?
- Parental Rights and Control: If a father is legally obligated to support a “person” in utero, does he gain increased legal rights over the mother’s medical decisions, lifestyle choices, or even the decision to carry the pregnancy to term? This raises profound concerns about the bodily autonomy of pregnant individuals.
The Threat to In Vitro Fertilization (IVF)
Perhaps the most disruptive and immediate impact of fetal personhood is on the practice of In Vitro Fertilization (IVF) and related embryology.
IVF is a standard medical procedure for overcoming infertility. It involves several key steps that are now put at risk by personhood laws:
A. The Creation of Multiple Embryos
A typical IVF cycle involves retrieving eggs, fertilizing them in a lab to create multiple embryos (often six to ten), and then implanting only the best one or two to maximize the chance of a successful pregnancy. The creation of “surplus” embryos is a necessary and standard part of the process.
If an embryo is a legal “person” from conception, then intentionally creating a surplus becomes fraught with legal danger. Any common practice that results in an embryo’s destruction or demise—even the simple act of letting it thaw and fail to survive—could be viewed as homicide, manslaughter, or wrongful death.
B. Genetic Testing and Selection
Preimplantation Genetic Testing (PGT) is often used to identify embryos with severe genetic disorders (like Down syndrome or muscular dystrophy) or those that are chromosomally abnormal and highly unlikely to result in a healthy live birth. Clinicians often discard or allow the deterioration of these genetically compromised embryos.
Under personhood, the destruction of an embryo identified as having a severe abnormality could be seen as a violation of a person’s “right to life” and potentially subject the physician, the clinic, and even the prospective parents to criminal or civil penalties.
C. Storage and Disposal
IVF often results in numerous unused, frozen embryos. Couples face four options for these embryos: keep them frozen indefinitely (which is costly), donate them for research (often restricted), donate them to another couple, or discard them. The vast majority of couples choose to discard them or cease paying storage fees, which results in their destruction.
If a frozen embryo is a legal “person,” discarding it becomes an act of killing a “minor child.” This could force couples to remain legally obligated to store their frozen embryos indefinitely, effectively creating a new class of stored legal dependents with inheritance rights and all the protections of a born child. The emotional, financial, and legal burden on families seeking to build their family through IVF would become unsustainable.
Personhood and the Erosion of Bodily Autonomy
Beyond the explicit impacts on family and fertility law, the core danger of fetal personhood is its implicit erosion of the bodily autonomy of pregnant individuals. If a fetus is a person with its own constitutional rights, then its rights can be pitted directly against the rights of the person carrying it.
In this legal framework, a pregnant person could be compelled by the state or the father of the fetus to:
- Undergo a specific medical procedure (e.g., a mandatory C-section).
- Avoid certain foods, activities, or medications.
- Be criminally prosecuted for negative pregnancy outcomes like miscarriage or stillbirth, if a prosecutor alleges their actions (or inaction) led to the death of the “person.”
Fetal personhood, therefore, sets up an existential conflict where the personhood of the fetus eclipses the personhood of the pregnant individual, reducing them to a legal vessel whose decisions are subject to state oversight and judicial compulsion.
The debate over fetal personhood is not simply a debate about abortion; it is a fundamental debate about the meaning of legal personhood, the rights of the body, and the future of medical science. The legal community is grappling with a potential flood of litigation and legislative chaos, and the consequences will shape family formation and women’s rights for generations to come.
Legal Questions Raised by Personhood Laws
When a fetus or embryo becomes a legal person, almost every area of law has to be reinterpreted.
Key questions include:
- Does a frozen embryo have inheritance rights?
- Are embryos counted in census data or child tax credits?
- Can embryos be included in child support orders?
- How are embryos treated in divorce — as children, property, or something else?
Does destroying an embryo constitute manslaughter? - Does discarding embryos violate the wrongful death statute?
- Can a pregnant person be ordered to undergo medical treatment to protect the fetus?
- Are car accident victims liable for fetal damages even at one day post-conception?
- Does a miscarriage trigger a criminal investigation?
Family law practitioners—and reproductive medicine experts—must rethink countless assumptions under a personhood framework.
California’s Position and Protections
California, in contrast to personhood states, has strong statutory and constitutional protections for:
- Reproductive autonomy
- IVF and assisted reproductive technology
- Privacy in medical decision-making
- Clearly defined parentage laws based on intent
California defines embryos as potential life, not legal persons. Parentage is established through the California Uniform Parentage Act (UPA), which is intent-based and protects intended parents in IVF and surrogacy arrangements.
While California remains a protective state, clients often travel or move between states. They may create embryos in one state and store them in another. Cross-state legal conflicts are inevitable as personhood laws grow.
For California families, the safest path is education and proactive legal planning — especially for those using assisted reproductive technology or with embryos stored in other states.
As personhood laws continue to evolve, the intersection of family law, reproductive medicine, and constitutional law will only become more complex.
Minella Law Group Can Help
Minella Law Group is committed to staying on the forefront of these issues and helping families navigate the rapidly changing legal landscape with clarity and protection.
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*Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalized guidance on your case, contact a licensed California family law attorney