The Fetus as a Patient: Emerging Rights as a Person?

Abstract

Dramatic scientific breakthroughs in medical technology have revolutionized the physician's diagnostic prowess in the art of obstetrics. Scientific procedures now reveal previously undetectable secrets about the womb's tiny inhabitants. In the last few years, perinatologists have not only demonstrated the ability to discern fetal abnormalities of an extraordinary variety, but also have become increasingly successful in correcting many of these defects in utero. This article identifies the potential medicolegal conflicts that may arise as fetal surgery becomes an accepted medical practice. It begins by surveying the legal rights of unborn persons with a particular emphasis on the role of viability in determining those rights. The article will then examine the concept of viability as developed by the Supreme Court in Roe v. Wade and later abortion decisions and concludes that the current judicial deference to the medical community in determining viability is adequate for balancing rights in the abortion context. However, conflicts among physicians and between the other and her unborn child that may arise in the fetal surgery context suggest that viability may be an adequate benchmark for resolving such conflicts. The article concludes with a recommendation to reform the current method of resolving the critical question of when a fetus becomes viable.