Can There Be Justice for Pregnant Women if the Unborn Have “Human Rights?”

Editor’s Note: This article is part of a pre-election series
featuring leading voices in sexual and reproductive health advocacy,
showing how shared American values underpin their support for sexual
and reproductive health, rights, and justice. Read them all here.

This summer, the question of abortion and the rights of the
unborn once again took center stage as a presidential campaign issue. In
August, at the Saddleback Civil Forum, Pastor Rick Warren asked both
presidential candidates: "At what point is a baby entitled to human
rights?"  Senator John McCain’s answer,
"at the moment of conception," immediately established his anti-abortion bona

But the right answer, as a matter of international human rights principles and simple justice,
is: human rights attach at birth, not at conception.

This is the only position that ensures that upon becoming
pregnant, women do not lose their
human rights.

Cases from across the country prove that if the unborn are
recognized as legal persons with separate human rights, the government will
have the power to deprive pregnant women of their rights to informed consent,
due process, liberty, and even life – without any guarantee that the interests
of the unborn will in fact be protected.

After Ayesha Madyun’s water broke, she went to
the hospital where she hoped and planned to have a vaginal birth. When she
didn’t give birth in a time-frame comfortable to her doctors, they argued that
she should have Cesarean surgery. The doctors asserted that the fetus faced a
50-75 percent chance of infection if not delivered surgically. (Risks of
infection are believed by some health care providers to increase with each hour
after a woman’s water has broken and she hasn’t delivered.) The court
said, "[a]ll that stood between the Madyun fetus and its independent
existence, separate from its mother, was put simply, a doctor’s scalpel."
The court granted the order; the scalpel sliced through Ms. Madyun.  After the delivery, there was no evidence of
infection and no evidence that any human rights were advanced – for the born or

Relying on fetal rights arguments, authorities in Utah arrested a woman
for murder because she delayed a C-section causing, the state alleged, the
stillbirth of one of her twins.

Other women have been charged with
homicide based on the claim that the stillbirths they suffered were caused by
an illegal drug they took.  Recently, a unanimous South Carolina Supreme Court had to overturn
Regina McKnight’s conviction for homicide by child abuse. After Ms. McKnight
had served more than eight years in prison, the court finally recognized that
her conviction had been based on "outdated" research and that her trial counsel
had failed to call experts who would have testified about "recent studies
showing that cocaine is no more harmful to a fetus than nicotine use, poor
nutrition, lack of prenatal care, or other conditions commonly associated with
the urban poor." 

At least fifteen
to twenty percent of all pregnancies end in miscarriage or stillbirth. Certainly, human rights are not advanced by
creating a legal basis for treating miscarriages and stillbirths as murder.

Laura Pemberton wanted to have a vaginal birth after a
previous delivery by Cesarean surgery. Because no hospital would admit her
unless she agreed to deliver again by surgery, she stayed home to give birth.
While there, in active labor and near delivery, an armed Sheriff knocked on her
door. He had orders to take her into custody. He strapped her legs together and
brought her to a hospital to determine whether she could be forced to have the Cesarean surgery. A lawyer was appointed for the fetus, but not for Ms.
Pemberton. Ms. Pemberton vehemently opposes abortion, but she nevertheless
believed in her right to evaluate medical risks and benefits to herself and her
unborn child. She was forced to have the unnecessary surgery. When she later
sued for violations of her civil rights, was told she had none.

My organization, National Advocates for Pregnant Women, is documenting
hundreds of cases in which fetal rights have been used to justify denying human
rights to women who have no intention of ending their pregnancies. If the unborn
are granted human rights, courts will have jurisdiction over pregnant women
whenever someone disagrees with their decisions to undergo chemotherapy, to
continue taking anti-depressants, to continue working, to drink any amount of
alcohol, to chose vaginal birth over Cesarean surgery and even if what the
pregnant woman wants is, simply, to live.

At 27 years old and 25 weeks pregnant Angela Carder became
critically ill. The hospital called an emergency hearing to determine the
rights of the fetus. Despite testimony that a Cesarean section could kill Ms.
Carder, the court ordered the surgery because the fetus had independent legal
rights. As a result, Ms. Carder not only lost her right to informed consent and
bodily integrity; she lost her life. The surgery resulted in the death of both Ms.
Carder and her fetus.

Ms. Carder’s case makes clear that the issue is not choice
versus life, but life vs. life – that is whether the government should have the
power to privilege fetal rights over maternal life.

candidates of all persuasions should rest assured that to oppose the
recognition of human rights before birth is not to deny the value of potential
life as matter of religious belief, emotional conviction or personal
experience. Rather, it is to recognize the value of the women who give that

It is to recognize that there are not two different kinds of women: those who have
abortions and those who have babies. Sixty-one percent of women who have
abortions are already mothers. Over the course of their lives, 85 percent of
all women bring life into this world and provide the majority of care for that

These women – all of them, whether they oppose or support
legal abortion – struggle with U.S. policies that run counter to women’s health
and family well being. They are pregnant women who lack protection from
workplace discrimination. They are parents and caretakers who lack economic and
social supports available to women in virtually every other western
industrialized country, like a national health care system and paid maternity

And, whether they define themselves as "pro-life" or
"pro-choice," most women believe, and justice demands, that they do not lose their human rights at
the moment they conceive.

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  • invalid-0

    I think this is an excellent post cause most people don’t think about this area when thinking of reproductive rights. I don’t know why but it seems to be lost on most people. Anyway good post!

  • invalid-0

    I am surprised you did not quote the 14th Amendment of our Constitution in support of your arguments (with which I wholeheartedly agree). The 14th Amendment begins, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Not conceived, not fertilized, not implanted, born. If that does not say, as unambiguously as is possible in the English language, that a pregnant woman is a citizen with rights and her fetus is not, then what does it say?

  • marysia


    The problem with fetal rights arguments as they now stand is the exact inverse of the problem with abortion rights arguments as they now stand.  Proponents of both arguments, when it comes right down to it, believe that they must side with either the pregnant woman or the fetus–as if in the end they had to choose one or the other.


    Somewhere lost in this is the more complex and messy reality of each pregnant woman and her fetus as profoundly interconnected yet distinct human lives and bodies. 

    What if instead of playing the zero sum game of the abortion debate, we learned as a society to equally value *both*?  I think *that* would be the most deeply radical way of achieving justice.

    Unfortunately, this country has never dared to try it, it suffers from such a deep poverty of moral and political imagination.  But what if?

  • invalid-0

    I don’t see how you can value both without eventually valuing one over the other. Some of the situations listed in this article are very good examples of that. If the fetus were not inside the body there would be no problem treating them equally, but this is not the case.

  • invalid-0

    Can I claim them on a 1040. If I cannot, the government has no authority in their sustainability. No taxation without representation.

  • invalid-0

    You want to have society “learn to equally value both”. The problem is that they are NOT equal. A one week zygote is certainly not equal to me and should definitly not be granted citizenship (rights). Like the rest of us that make it through gestation and childbirth, rights should be granted once the fetus is born.

  • invalid-0

    I live in Colorado where the “personhood” amendement (#48) is on the ballot right now. As a woman of childbearing age -I don’t think it’s right that, if 48 passed, my human rights could technically be taken away the second I become pregnant. I’m the one who is the productive member of society who is breathing, and has already been alive long enough to have established an identity, self-awareness, and human relationships with other living, breathing people — not my zygote.

  • paul-bradford

    Let’s read more about Regina McKnight: Court upholds murder verdict in stillbirth case  The story is even more outrageous than Lynn Paltrow’s short description allowed her to express, but it’s not outrageous because the state of South Carolina respects fetal rights, it’s outrageous because stillbirth is equated to murder.  Take note of this comment: 

    While most states have laws to prosecute someone who kills a viable fetus, South Carolina is the only state in the nation with a homicide statute tied to stillbirth.

    When McKnight, who is African American, was sentenced she was described as “a homeless drug addict with an IQ of 72”. This story is the story of power-mad prosecutors run amuck.  The point of the case, according to them, was that “anyone who causes the death of a viable fetus may be prosecuted for homicide and face up to life in prison.”  But they were wrong, the point at stake in this case wasn’t whether someone ought to be prosecuted for causing the death of a viable fetus (which is a position that can be reconciled with adequate maternal rights) but whether drug use prior to a stillbirth can be interpreted as murder.

    When McKnight’s conviction was overturned it wasn’t overturned on the grounds that South Carolina had no right to defend the unborn, it was overturned because they hadn’t proved that Paltrow’s drug use made her guilty of killing the fetus.

    Paltrow claims that “as a matter of international human rights principles and simple justice, human rights attach at birth, not at conception. This is the only position that ensures that upon becoming pregnant, women do not lose their human rights”.  But Paltrow overstates the case and she does it by presenting examples of legal malfeasance. Ordinary application of the law doesn’t generate such injustice.

    In most states, human rights are afforded to a viable fetus and most of the time a balance between fetal and maternal rights is maintained.  It’s not necessary to obliterate either one.  Citing cases where the balance has been lost is no argument to stop working to find a balance.



    Paul Bradford

    Pro-Life Catholics for Choice

  • invalid-0

    Those stories make me so angry, and I was nearly in tears when I read Angela Carder’s story. The judge and hospital personnel who decided to force her to have the Caesarean section with the knowledge it could kill her should be charged with murder. And strapping Laura Pemberton’s legs together? That’s just so degrading, and must have been humiliating and terrifying for her. Treating women as if they’re subhumans is just unjustifiably horrendous.

  • invalid-0

    You forgot to mention the rest of the 14th amendment which says . . . “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The unborn can be the subject of rights even if they are not citizens, just like any undocumented worker in this country.

  • invalid-0

    Dear Lynn,
    I just wanted to say thank you so much for your continual, steadfast work on behalf of women and their families. I am not sure if you remember me, but I worked some with SC Advocates for Pregnant Women about 7 years ago. I am now serving in the U.S. Peace Corps in Tonga, but thanks to the internet, I am still able to keep up with the election and current issues! Your open letter to Sarah Palin was absolutely fantastic.

  • marysia

    I don’t deny there are tragic medical situations, like those described in Lynn Paltrow’s article, where there is a conflict.


    However, most conflicts between pregnant woman and fetus are created by societal conditions that pit one against the other.  


    Women frequently have abortions because they are denied the generous resources and accomodations necessary for them to continue educations or work jobs or care for already-born children or avoid escalating battery from male partners, or use contraceptives that are foolproof…But this is not some state of nature.  It’s a world created through inhumane human agency, and it can be undone through humane human agency.

    If we as a society looked at both pregnant woman and fetus as equally valuable in these situations, then there would be an all-out public commitment to creating other and better choices than abortion.  I’m not holding my breath for anyone to do this in the good old zero sum game lovin US of A, but I am going to keep raising my voice for the consciousness of both, not either/or.

  • marysia

    Sure, why not be able to claim unborn kids on a 1040? 


     But a lot more is needed to help give both pregnant women and unborn children life than a tax credit.  An all-out commitment of public resources before, during, and ever after birth is needed. 

  • marysia

    Is being a "productive" member of society an essential criterion for qualifying as a human being with the right to life?


    The definition of "productive" so often put forth in US culture is one that excludes already-born children (never mind unborn), elderly persons, the unemployed and low-income, and disabled people.  As a disabled person especially, I am wary of this criteria for having a life.

  • invalid-0

    One does not achieve personhood until birth. Until then, a foetus is simply an extension of the mother.

    Would you be comfortable with a woman being refused chemotherapy because of her being pregnant, even if withholding the treatment would almost certainly result in the woman’s death? If you are comfortable with that, then you are essentially saying that the foetus’ right to life outweighs the woman’s right to life.

  • invalid-0

    I totally agree…. WHY isn’t that “judge” sitting his worthless butt in JAIL FOR 2 COUNTS OF MURDER?

  • sayna

    No, most conflicts between woman and fetus are not societal. I agree that pregnant women should not have to be forced to choose between poverty, loss of opportunity, or basic care and respect and having a child. I agree that all pregnant women who choose to carry to term should have proper medical care and resources to help them out. However, I don’t think that this conflict is socially constructed and I don’t think that most women who have abortions do so to avoid poverty.

    What you repeatedly fail to understand is that two living things in one body cannot have the same basic rights. This is not socially constructed and it’s not just my opinion. It’s reality. The rights of one will eventually have to come before the rights of the other.

    If that were not the case then there would be no abortion debate. The reason we have this debate is because there really is no middle ground: either abortion is legal or it is illegal. If the fetus is given an inalienable right to life then the mother’s rights to life, liberty and pursuit of happiness are taken away because control of her own body is taken away from her and she is legally forced to give birth against her will. If the woman is given rights to life, liberty and pursuit of happiness this will mean that she has the right to control what happens to her own body, even if lethal force is necessary to defend and ensure these rights (meaning that she has a right to kill the fetus).

    What Ms. Paltrow points out is that when fetal rights come before women’s rights, the results can be horrific. These stories clearly show that the conflict is not socially constructed but simply an unfortunate and undeniable fact. It’s not so simple as women feeling pressured by society to have unwanted abortions, and I’m a little offended that you assume that all women want to be pregnant and have children, and that you seem to see abortion as a selfish and petty choice. It’s disrespectful to women to assume that you know better than they do what they want or how they feel.

  • invalid-0

    Great post, however, I do not think that anything can be changed

  • invalid-0

    You’re missing the elephant in the room, which has nothing, I repeat, NOTHING to do with denying human rights to pregnant women. This is, more than anything, an issue about medical malpractise and tort liability. OB-GYNs have the highest medical malpractise premiums; women who give birth to “imperfect” babies can sue – and often win – multi-million dollar judgments. It’s not always about being mean to women; it’s about doctors who are being rational. Juries don’t award damages, or as much in damages, when doctors perform C-sections. When women come into the hospital after a failed attempt to birth at home, the hospital is liable.

    Now, my second problem: millions of women give birth every year. You’ve collected about four horror stories, which makes this a one in a million issue – literally. Now, should we deny an entire class of human beings their basic human rights (how progressive of you!) just because that results in abuse — one in a million times?

  • invalid-0


    Where have I said that I believe that all women want to be pregnant and have children? I decidedly don’t.

    Where have I ever said that abortion is a selfish and petty choice? Maybe you’d like to believe that I am such an awful “antichoice” monster that I have so little empathy…but I have spent years standing up to antiabortionists who fulminate that women have abortions for reasons of convenience.

    You need to stop putting such ugly words into my mouths and stick to the issue instead of engaing in these personal attacks.

  • invalid-0

    I do not believe in abortion, although I do believe that the women should ultimately have the right to choose weather or not if she should have one and what to do with here body. I believe that the decision is a moral one and it is between she and her GOD. I also believe that she should consider the cost before she has an abortion. I am open to any and every way of stopping it, life begins at conception and so should citizenship. My God says before you were formed in your Mothers womb , I “know” you. notice the word know not knew. the government can never legislate private moral behavior but love and support can. Don’t throw stones

    Husband of one
    Father of five

  • invalid-0

    I do not believe in abortion even in the cases of rape or incest or in the case of saving the life of the mother, although I do believe that the women should ultimately have the right to choose weather or not if she should have an abortion and what to do with here body. I believe that the decision is a moral one and it is between she and her GOD. I also believe that she should consider the cost before she has an abortion. I am open to any and every way of stopping it, life begins at conception and so should citizenship. I, believe that God could save the mother and the child if it is his will, and in many cases has even after the doctors has said it could not be done God has. My God says before you were formed in your Mothers womb , I “know” you. notice the word used is “know” not “knew”. the government can never legislate private moral behavior but love and support can. Don’t throw stones.

    Husband of one
    Father of five

  • invalid-0

    I really shouldn’t feed the troll, but…

    Look, Mr. Bigot. I don’t care what your religion says. You do not have the right to arbitrarily impose your religious beliefs onto other people. Ever. At all. In any way. Proselytizing is creepy and unethical in and of itself, but actually legislating religious ideology into law is just wrong on so many fundamental levels. It’s also against the separation of church and state.

    A microscopic two-cell blob is not a person, and does not have more rights than the woman whose uterus is being occupied. Women have the right to control their own bodies. Your god may say I became a person when I was too small to be seen with the naked eye, but MY gods are more or less okay with women having power. (And really, could you give me a quote? I mean, if we’re taking a poorly translated bronze age text as the pinnacle of human achievement, at least give me a page number or something.) Why should your god trump my gods?

    By saying you are against abortion even when NOT aborting will kill the mother, you are saying that you consider women’s lives to be fundamentally less important than their capacity as breeders. How very 10th century of you.

  • invalid-0

    You seem to be suggesting an entire class of people – women – should be deprived of human rights? If one’s body belongs to the state, that person essentially has no rights.

  • invalid-0

    Are you really suggesting you would prefer for the mother of your children to die than to have an abortion? While I’m relieved you don’t believe your views should be inflicted on women by force of law, I hope your partner is aware of how little you value her life.

    Sorry, but that’s just despicable. Absolutely indefensible.

  • invalid-0

    As you can tell, I’m no legal eagle, but you’ve raised something I had yet to see: Constitutional precedence! Now I understand why the fundies want fetal personhood status across America: with enough states behind it, a Constitutional Amendment amending the 14th would be forthcoming, and would be upheld by the Supreme Court guilt-free.
    This may be why the GOP is putting a lot of energy into gubernatorial races – signing such odious legislation would not be something most Democrats would do, but self-righteous Republicans would, whoring to the ignorami.

  • invalid-0

    …fertilized egg. Let’s see how that logically plays. First, the government needs to know they exist, even before whomever female they reside in knows, because nobody instantly knows they’ve been fertilized. How do you propose to do that? Hard-wire every female at birth with GPS tracking and a webcam, so all sexual activity in the vagina is reported? Once intercourse is detected, quarantine an healthiest regimen known to humanity to assure implantation? Death certificates and inquests to determine civil and/or criminal liability for all eggs, zygotes, embryos, feti (did I leave anything out) not resulting in birth? Who’s going to be hired to make this all happen? How much will they be paid and how much of a tax increase are you ready to pay because this project will make our exploits in Iraq look thrifty by comparison.
    You want US to get out of the abortion business by having really Big Government? As Palin said, “now is not the time…”

  • invalid-0

    50 Million innocent babies dead!

    burned alive with saline,
    bodies torn apart,
    stabbed in the back of the head
    while being born…

    50 Million innocent babies dead!

    this is not about “safety of the woman”;
    abortion & stem cell research is Big Bu$ine$$…

    50 Million innocent babies dead!

    …while they slept in what should be the safest and most sacred place in the world, the womb of their mother.

    Yes!! I would sacrifice my life for any and all of my children. Dangerous pregnancy, burning car, threatening animal, you name it…what mother wouldn’t? That’s called LOVE. To put the good of the other before yourself. Have we forgotten how to do this?

    50 Million innocent babies dead!

    Abortion doesn’t help women, check out “Silent No More”
    and “Black Genecide”…
    abortion just leaves one dead and one terribly wounded…

    50 Million Innocent Babies DEAD!…and counting!

  • betty-brown

    geez, i think you should both calm down and consider living in the real world.  so much of your lunatic raving is complete nonsense, based upon falsehoods created by religious types who rail against scientific fact.  

    oh, and "the safest and most sacred place in the world"?  really?  if it’s all so sacred and safe, why do so many women miscarry?  why then do terrible defects happen during pregnancy?  hmmm?  either your god isn’t so merciful as you’d like to believe, or the sacred womb is…what, evil?  i really can’t comprehend what it must be like to live inside your head, letting crazed emotions based on myth rile you up so.  and that would be fine-you have every right to be a crazed ball of religious emotion, except your type tries so hard to push your crazy beliefs on real adults who have every right to their own opinion in this matter.  



    truth?  is truth unchanging law?  we both have truths, are mine the same as yours?

  • invalid-0

    Actually by the definition of science, from the moment of conception an embryo meets every prerequisite to be called a “living human being”. The child meets every prerequisite to be considered alive, as well as human. Read a science book.

    Now, a mother who intentionally takes illegal drugs after finding out she is pregnant is intentionally placing someones life in danger. Her childs.

    I place this before you- you are mother. Your child is about to be hit by a bus, would you not push your child out of the way of that bus, even though it may mean your death? Good mothers answer “yes”. Well what has changed from that child being in your stomach to being outside your body?

    The child is still fully dependent upon the mother for survival even after birth. So, should we then define human life as when someone isn’t dependent upon others? Well in that case, most people on the earth would not be defined as human.

    You are some very frighteningly elitist people, who merely use emotion as a stepping stool to promote lies and debase an entire class of people.

  • invalid-0

    some very interesting and thought promoting stuff here. maybe we give to much emphasis on science??

  • invalid-0


    Thank you for bringing attention to an issue that may not have quite the attention that is deserves. Fetus rights are spoken about in blazing generalities on the news, but Womens’ Rights are not often talked about.

    I don’t think that many have considered some of the situations here that were listed where Women have been violated.

    While the right to life is a hotly contested issue, it may be that there is no real clear cut answer to the debate, except that the situations are extremely grey.

    I was horrified to read about some of the things that mothers have gone through. And you would think that in the 21st Century, we’d be better of.


  • alexm

    A wonderful post.  The state (and that means us, guys and gals) should never afford fetuses higher value than the women that carry them.  To do so is the first step back to the subordination of women to their bodies.

    The personal is political.

  • invalid-0

    It’s really disappointing to see how we sometimes intervene in what we may think is better for the world, at the expense of other things. I don’t think that many people are aware of or have heard of the horror stories like these that have completely destroyed peoples lives. People need to look much more at these kinds of ramifications.