A horror story is playing out in Georgia, where physicians at Emory University Hospital have kept Adriana Smith, who is brain-dead, on life support for three months against her family’s wishes solely as a means of incubating her still-developing fetus. Georgia law declares that an unborn product of conception at any stage of development is a “natural person.” Between that statute and Georgia’s ban on abortion after six weeks of gestation, Smith’s doctors decided that discontinuing life support would effectively “abort” the fetus.
This is not the first time a pregnant woman has been treated as an incubator for her fetus.
Bioethical and legal dilemmas created by conflicts between the needs of pregnant patients and their fetuses have a long history. But growing efforts to enshrine fetal rights into state law, in conjunction with the Supreme Court’s 2022 elimination of federal constitutional protection for abortion, bring renewed urgency to this issue.
Pregnant people risk serious injury or death gestating in “pro-life” states like Texas, where providers face possible imprisonment and loss of licensure for providing standard treatment to patients with preterm premature rupture of membranes or severe preeclampsia. Even Minnesota, a state that prides itself on reproductive freedom, has a law permitting involuntary civil commitment of pregnant women who make “habitual or excessive use” of certain substances.
It’s unlikely that these laws were enacted primarily to support pregnant people. Rather, they seek to put fetuses on the same legal footing as born children, with an eye toward outlawing abortion as equivalent to murder.
But equal legal treatment of fetuses and children shouldn’t have such an effect. If the law actually treated pregnant people and fetuses like parents and children, abortion would be legal and situations like the one involving Smith wouldn’t occur.
Nowhere in America does the law require a competent adult to use their body to support another person. Imagine, for example, that your child has pediatric end-stage liver disease and needs a transplant to survive. You aren’t a compatible donor, but your spouse is. If your spouse, for whatever reason, didn’t want to donate part of their liver, what could you do? You could try to persuade them. You could appeal to their parental love and moral sensibility. But, despite limited relevant caselaw, you probably couldn’t successfully sue them to force them to donate. Parents have legal duties to their children, but donating body tissue isn’t one of them.
Even the government probably couldn’t force your spouse to provide their liver. A court would weigh your spouse’s interest in privacy and security against the state’s interest in protecting children by mandating an invasive procedure. The Supreme Court has held that the state’s interest in prosecuting a criminal suspect may not outweigh the suspect’s protected privacy and bodily autonomy interests in avoiding forced surgery to obtain evidence lodged in the suspect’s body. Parents would likely enjoy similar consideration in contexts involving their children.
Pregnant people should have the same right. They must undergo multiple changes to their body to support their fetus and give birth. Hormonal changes, especially during birth and postpartum, help initiate a lasting bond between the mother and her resulting child. This biological feature of childbirth does not create an inexorable bond — consider, for example, gestational surrogates who readily give up the child they delivered to the child’s intended parents. But abortion should be permitted if the person wants to avoid all these changes.
Some state supreme courts agree, concluding, as the Kansas Supreme Court did in 2024, that “the ability to decide whether to continue or terminate a pregnancy … is integral to a woman’s exercise of her inalienable natural right of personal autonomy under [the state constitution].”
This should be true even if fetuses are considered legally equivalent to a child. After all, the law doesn’t force a parent to give part of their body to their child, even if it’s the only thing that will keep their child alive. Why should it treat a pregnant parent differently before birth than it does after?
Is it that the pregnant person often gets their fetus through consensual sex, rather than reproductive coercion or assisted reproduction? This is also true for most parents with children.
Is it that pregnancy is “natural,” whereas pediatric end-stage liver disease and other health-related matters are not? That’s incorrect. None is any more or less natural than the others. This is true even though pregnancy is sometimes welcomed or keenly sought while diseases are usually dreaded. We are all mortal, biological beings. Most people will suffer illness and ultimately die of disease. Yet we do not have laws prohibiting the medical or surgical treatment of “natural” diseases.
Is it that abortion doesn’t terminate just the state of pregnancy but also a fetus? That doesn’t prevent action in analogous situations, like in the case of conjoined twins where one twin is dependent on the other for survival. Just because one will die if separated from the other doesn’t mean that the other should therefore be forced to continue to serve as a host. Again, there is generally no duty in American law for one person to use their body to support someone else. Imagine if your spouse decided to donate a portion of their liver to your child, but in the surgical suite (before anesthesia) demanded that the operation stop. If the surgeon refused, your spouse could sue them for battery. Tort law typically treats withdrawal of consent as valid at any time when it is possible to stop a procedure or process.
The law shouldn’t treat pregnancy differently from other health conditions. It shouldn’t force pregnant people to assume greater duties to their fetuses than parents have to their children. There is no good basis for such discrepancies. This should be true whether the law treats fetuses as persons or simply as fetuses.
Laura Hermer is a professor of law at Mitchell Hamline School of Law in St. Paul, Minnesota.
