FETAL RIGHTS The rights of any unborn human fetus, which is generally a developing human from roughly eight weeks after conception to birth.. This situation has led to a number of legal
Trang 1Technically a ferry is considered a
continu-ation of a highway from one side of the body of
water that it passes over to the other
The privilege of handling a ferry is called a
franchise A ferry franchise is a permit from the
state to a specifically named individual giving
that person the authority to operate a ferry It is
a general prerequisite to the lawful
establish-ment of a public ferry The operator of a ferry is
not relieved of the duty to obtain a franchise by
formation of a company, since the franchise
becomes a contract between the owner and the
state
Usually the grant of a ferry franchise
implicitly gives the recipient the power to
collect tolls Ferriage is the fare that the ferry
operator may charge The unauthorized
estab-lishment of another ferry within competing
distance of an already existing one constitutes
an infringement of the ferry franchise, even in
the absence of physical interference
A ferry franchise can be terminated either by
expiration of its term or by revocation by the
licensing authorities It is generally subject to
renewal, for which the original owner is usually
given a preference
A public ferry is for use by the public at
large, whereas a private ferry is operated solely
for the benefit of its proprietor
The state has intrinsic authority to regulate
and control ferries that operate within its
borders It may exercise such power by law or
by contract with the operator The state may
regulate the transportation of dangerous
arti-cles, the nature and frequency of service, and
the location of terminals In addition, it may
impose a license fee or tax on the operation of
ferries within its boundaries
FETAL RIGHTS
The rights of any unborn human fetus, which is
generally a developing human from roughly eight
weeks after conception to birth
Like other categories such asCIVIL RIGHTSand
HUMAN RIGHTS, fetal rights embraces a complex
variety of topics and issues involving a number
of areas of the law, including criminal,
employ-ment, health care, andFAMILY LAW
Historically, under both English COMMON
LAW and U.S law, the fetus has not been
recognized as a person with full rights Instead,
legal rights have centered on the mother, with
the fetus treated as a part of her Nevertheless, U.S law has in certain instances granted the fetus limited rights, particularly as medical science has made it increasingly possible to directly view, monitor, diagnose, and treat the fetus as a patient
The term fetal rights came into wide usage following the landmark 1973 ABORTION case Roe v Wade, 410 U.S 113, 93 S Ct 705, 35 L Ed
2d 147 In that case, the Supreme Court ruled that a woman has a constitutionally guaranteed unqualified right to abortion in the first trimester
of her pregnancy She also has a right to terminate
a pregnancy in the second trimester, although the state may limit that right when the procedure poses a health risk to the mother that is greater than the risk of carrying the fetus to term In making its decision, the Court ruled that a fetus
is not a person under the terms of the
FOURTEENTH AMENDMENTto the U.S Constitution
However, the Court also maintained that the state has an interest in protecting the life of a fetus after viability—that is, after the point at which the fetus is capable of living outside the womb As a result, states were permitted to outlaw abortion in the third trimester of pregnancy except when the procedure was necessary to preserve the life of the mother
What has complicated the issue since the Roe decision has been the tremendous advance
in medical technology that now makes the viability of a fetus possible even when it is only several weeks into gestation It has called into question the appropriateness of judging the viability or the value of a fetus by trimester, making it an arbitrary benchmark in some
A ferry is considered a continuation of a highway from one side of a body of water to another This ferry transports people and vehicles across the Potomac River between Maryland and Virginia.
PAUL A SOUDERS/ CORBIS.
Trang 2cases Further, physicians are often under increased strain as they try to weigh factors regarding the health risks to both mother and fetus
Roe evoked impassioned responses from those who were morally or religiously opposed
to abortion, and in the years following that case, abortion became one of the most contentious issues in U.S law Those opposed to the procedure became a powerful political lobby
in the United States Their efforts to promote the rights of unborn humans have had a significant effect on the law
However, the cause of fetal rights has been greeted with suspicion by those who are concerned that the state may protect fetal rights
at the expense of women’s rights For this reason, many feminists have been highly critical
of claims regarding fetal rights Such claims, they argue, can work to significantly diminish women’s rights to self-determination and bodily autonomy
At the same time, most legal experts recognize an increasing need to clarify the legal status of the fetus, particularly as technology has made it possible to regard the fetus as a patient independent of the mother Some scholars have even gone so far as to ask that a model fetal rights act be passed so that states—which now exhibit a wide variety of approaches to fetal rights—may develop a more coherent legislative approach to the issue of fetal rights, one that will give courts more direction in deciding relevant cases
The specific issues in which legal claims have been made regarding the rights of the fetus usually require a careful consideration of the sometimes competing rights of the woman and the fetus
Partial Birth Abortions The May 2009 MURDER of Dr George Tiller, a Kansas physician who was one of the very few in the country who still performed third-trimester abortions, underscored the reality that the weighing of abortion rights vs fetal rights still remains a volatile issue in the country, especially
in the hands of extremists on both ends
In 2003 Congress had passed, and President Bush signed into law, the Partial-Birth Abortion Ban Act, P.L 108-105, 18 U.S.C.1531 The term partial birth abortion describes a procedure defined in the Act as any abortion in which the death of the fetus occurs when “the entire fetal head or any part of the fetal trunk past the navel is outside of the body of the mother.” Immediately, Dr Leroy Carhart and physicians who performed late-term abortions (Tiller) challenged the new act to stop it from becoming effective
Former U.S Attorney General JOHN ASH-CROFTattempted to subpoena abortion records
in defense of these challenges to the Act Three courts found the federal law unconstitutional because it failed to provide any exception for such late-term abortions if a woman’s health was at stake See, e.g., NAF v Aschcroft, No 03-CV-8695 (U.S.D.C NY, 2004)
Meanwhile, states began to take a tough stance on banning the procedure In 2004, Kansas Attorney General Phill Kline was granted a court order to subpoena medical records from two Kansas abortion clinics that performed late-term abortions (later than the 22nd week of gestation) and/or abortions on girls younger than 15 The request involved the records of some 90 women and young girls (Kansas law prohibited abortions performed after 22 weeks, excepting a non-viable fetus or a significant health risk to the mother Moreover, the state’s STATUTORY RAPE law prohibits sexual intercourse, consensual or not, with anyone younger than 15.) The attorney general publicly stated that he was seeking evidence of childRAPE
and illegal abortions performed after 22 weeks
of pregnancy, and a GRAND JURY investigation resulted in a subsequent finding of PROBABLE
A doctor performs
an ultrasound
examination on a
pregnant woman.
The legal status of a
fetus remains
unclear Although an
unborn child does
have some rights
under the law, those
rights sometimes
conflict with the
rights of the mother.
AMY ETRA/PHOTOEDIT
Trang 3CAUSEthat some abortion providers had violated
state law According to state records, 78 girls
younger than 15 received abortions in Kansas in
2003
The two abortion clinics refused to comply
The Women’s Health Care Services of Wichita,
run by Tiller, was one of only three clinics in the
nation that performed partial birth abortions
(Tiller, who had been the subject of numerous
public demonstrations outside his clinic over
the years, had contributed $150,000 through
PACs to oppose the election of Kline as attorney
general.)
In early 2005 the two clinics, supported by
Planned Parenthood, filed briefs with the
Kansas Supreme Court requesting injunctive
relief from the lower court’s subpoena order,
calling Kline’s request a “fishing expedition.”
and citing both privacy rights and
doctor-patient privilege as grounds for the request
But Kline was quick to respond In the
state’s brief filed with the court, he reminded
the parties that a judicial finding of probable
cause had been secured prior to the issuance of
the order He further explained that the
subpoena involved medical records being
turned over to the court, not the media, lawyers,
or public at large Upon receipt of the requested
records, the court contemplated a procedure in
which an independent medical expert would
review the records to determine the viability of
the fetus, and whether there was objective
medical evidence to support the late-term
abortion
The Kansas subpoena was the strongest yet
among states taking action against illegal
late-term abortions Arizona required medical
providers to surrender ultrasound scans to
outside medical contractors for review South
Carolina permitted state authorities to
photo-copy medical records Indiana clinics, like those
in Kansas, faced a similar inquiry from state
Attorney General Steve Carter, who was
simi-larly challenged in court by Planned
Parent-hood In June 2005 Indiana Superior Court
Judge Kenneth Johnson again denied Planned
Parenthood’s petition for relief and ordered the
abortion clinics to turn over their records to
Carter’s Medical Fraud Control Unit
In March 2006 Governor Michael Rounds
of South Dakota signed into law The Women’s
Health and Human Life Protection Act, the
most sweeping yet of several state anti-abortion
measures House Bill 1215, overwhelmingly approved by the state legislature, banned all abortions excepting those involving jeopardy to the life of the mother No exceptions were made for the circumstances of the pregnancy (e.g., incest or rape) or for general health considera-tions of the mother Instead, the law focused on the sanctity of life, irrespective of how that life began, expressly recognizing “that each human being is totally unique immediately at fertiliza-tion.” The Act further noted that under the state’s constitution, “a pregnant mother and her unborn child, each possess a natural and inalienable right to life.”(Section 1, H.B
1215) Violations of the Act were punishable
as felonies
The Act was to take effect in July 2006
However, immediately after it was signed into law, abortion rights advocates mobilized Under South Dakota law, if opponents petition and collect a minimum number of signatures from registered voters, the effective date of a will be delayed until after it is placed on the general election ballot for a statewide vote in Novem-ber By approximately a 55–45 percent margin, South Dakota voters rejected the new law in November 2006 (most citing that it went too far) The debate split not only the general public but also the medical community, with public advertisements featuring doctors who offered differing interpretations of the law
Finally, in 2007, the Supreme Court spoke
In Gonzales v Carhart, 550 U.S 124, the Court upheld the Partial Birth Abortion Act of 2003 prohibiting the defined partial birth abortions, but Roe v Wade was left untouched The Court found that because the Act applied only to these abortions, it was not unconstitutionally vague
or overbroad Moreover, even though the act left no health exception for the mother, it was valid because Congress had investigated and concluded, based on medical testimony, that the proscribed intact procedure was never medically necessary (But the Court left open the possibility of a challenge if the Act were ever applied in a situation where the proscribed procedure was purportedly necessary to pre-serve a woman’s health.)
As of April 2009, 31 states had enacted bans
on partial birth abortion since Carhart
Forced Cesarean Sections Because of improvements in fetal monitoring and surgical techniques, physicians increasingly
Trang 4recommend that women give birth by cesarean section, a surgical technique that involves removing the fetus through an incision in the woman’s abdomen In many cases, cesarean section improves the chance that the fetus will
be delivered safely By 1990 cesarean sections accounted for almost 23 percent of U.S
childbirths
Some women choose not to undergo a physician-recommended cesarean section They may do so for a variety of reasons, including a concern about their own risk of harm, including death, from the surgery; a desire to avoid repeated cesarean sections; or sincere religious, cultural, or moral beliefs This situation has led
to a number of legal questions, such as whether
a woman should be forced to undergo a cesarean section or other surgery in the interest
of the health of the fetus, and the extent to which a woman is obligated to follow the advice
of her physician regarding the medical care of her fetus
The 1980s saw an increasing number of cases in which hospitals and physicians sought court orders to force women to give birth by cesarean section From 1981 to 1986, 15 such cases were reported, and in 13 of them, courts decided to require cesarean section In a 1981 case, Jefferson v Griffin Spalding County Hospital Authority, 247 Ga 86, 274 S.E.2d 457, the Georgia Supreme Court held that an expectant mother in her last weeks of pregnancy did not have the right to refuse surgery or other medical treatment if the life of the unborn child was at stake As has happened in a number of other instances, the pregnant woman named in the case avoided the procedure and later delivered a healthy child by natural birth
Later court decisions, however, increasingly recognized a pregnant woman’s right to refuse medical treatment In a 1990 case, In re A C.,
573 A.2d 1235, the District of Columbia Court
of Appeals ruled that a physician must honor the wishes of a competent woman regarding a cesarean section The court’s opinion was written after the woman involved in the case, Angela Carder, and her fetus died following a cesarean section forced by a lower court
A 1994 Illinois case, Doe v Doe, 260 Ill App
3d 392, 198 Ill Dec 267, 632 N.E.2d 326, involved a woman (called Doe to protect her anonymity) who was 35 weeks pregnant Her doctor conducted tests that indicated her fetus
was not receiving adequate oxygen He there-fore recommended that the fetus be delivered by cesarean section Doe objected to the surgical procedure on the basis of her religious beliefs The doctor and his hospital then contacted the Cook County state’s attorney, who petitioned for a court order requiring the woman to undergo the cesarean procedure
The case eventually reached the Illinois Appellate Court, which upheld Doe’s right to refuse the cesarean section The court held that
a physician must recognize a woman’s right to refuse a cesarean section It found no statute or Illinois case to support the state’s request to force a cesarean on a competent person It also dismissed the state’s argument that Roe’s protections of a viable fetus authorized a forced cesarean
The court also noted the position of the
AMERICAN MEDICAL ASSOCIATION (AMA) on the issue The AMA has reminded physicians that their duty is to ensure that a pregnant woman is provided with the necessary and appropriate information to enable her to make an informed decision about her fetus and that that duty does not extend to attempting to influence her decision or attempting to force a recommended procedure upon her The court assessed the action of the physicians in the Doe case to be in direct opposition to the AMA’s clear edict
Shortly after the court’s decision, Doe gave birth to a healthy baby boy The Supreme Court later declined to review the case New types of fetal surgery now made possible by medical science promise to raise questions very similar
to those found with forced cesarean sections Drug Use by the Mother
The use of illegal drugs such as cocaine and heroin can have a devastating effect on the health of a fetus By the early 1990s it was estimated that 375,000 children were born annually in the United States suffering from the effects of illegal drugs taken by their mother
As a result, some states have held women criminally liable for any use of illegal drugs that harms their fetus Prosecutors in many states have sought to deter such behavior by charging women with a number of crimes against their fetus, including delivery of drugs, criminalCHILD ABUSE, assault with a deadly weapon, and
MANSLAUGHTER Johnson v State, 578 So 2d 419
Trang 5(Fla 1991), demonstrates the controversial
aspects of such prosecutions In this case, a
Florida district COURT OF APPEALupheld a lower
court’s conviction of a woman for the delivery
of a controlled substance by umbilical cord
to two of her four children The decision was
the first appellate ruling to uphold such a
conviction
Jennifer Johnson, a 23-year-old resident of
Seminole County, Florida, had been arrested in
1989 after two successive instances in which a
child born to her tested positive for cocaine
immediately after birth Cocaine is especially
harmful to a fetus, often causing premature
birth, significant deformities and ailments, and
even death After Johnson’s conviction in the
Seminole County CIRCUIT COURT in 1989, the
AMERICAN CIVIL LIBERTIES UNION(ACLU) appealed
the case with backing from an unusual alliance
of medical and civil rights organizations,
including the AMA, the American Public Health
Association, the Florida Medical Association,
and the National Abortion Rights Action
League, all of which had different reasons for
supporting the appeal
The AMA stated that it opposed the use of
criminal prosecutions against mothers
Impos-ing criminal sanctions, it said, does not prevent
damage to fetal health and may violate the
privacy laws between doctors and women,
making doctors and hospitals agents of
prose-cution The ACLU echoed the AMA, arguing
that prosecutions of drug-addicted women for
harm to their children will greatly damage
women’s health, their relationship to the
healthcare community, and their ability to
control their own body It also maintained that
the policies enacted against Johnson should be
made by a state legislature and not the courts,
and it pointed out that many more minority
women than white women are reported for
child abuse after testing positive for drugs
Other critics argued that most child abuse
statutes do not specifically mention drug use by
pregnant women as an offense, thereby raising
the question as to whether prosecutions on
charges of drug use involve a denial of due
process Still others said that increased funding
for substance abuse treatment programs was a
much better approach to the drug problem
They saw prosecutions on drug abuse charges as
doing little to treat the underlying addiction and
argued that such prosecutions deter at-risk
women from seeking prenatal care, increasing the likelihood of harm to the fetus
Despite these arguments, the Fifth district court of Appeals, in Florida, upheld Johnson’s conviction It agreed with the prosecution’s argument that Johnson’s umbilical cord had delivered cocaine to her children after their birth but before the cord was cut, thereby violating a Florida statute against the delivery of
a controlled substance to a minor (Fla Stat
Ann § 893.13(1)(c) [West 1991])
Laws covering fetal HOMICIDE were in effect
in 29 states in early 2004, many expressly excluding the mother from culpability Several high-profile cases were reported in which mothers were held liable for the deaths of their stillborn or fetal infants, especially in drug-related cases In April 2004 Salt Lake County district attorneys agreed to drop murder charges against Melissa Ann Rowland for allegedly refusing a caesarian section that likely would have saved her unborn twin son’s life Lingering
Fetal Rights
DRUG USE DURING PREGNANCY, 2002–2007
Percentage of pregnant women
Alcohol (moderate)
19.0%
First trimester Second trimester Third trimester
7.8%
6.2%
8.0%
1.8%
1.0%
21.8% 14.4%
13.9%
4.6%
2.9%
1.4%
Alcohol (five or more drinks in a couple of hours)
Cigarettes
Marijuana
SOURCE: Office of Applied Studies, Substance Abuse and Mental Health Services
Administration (SAMHSA), The NSDUH Report, “Substance Use Among
Women During Pregnancy and Following Childbirth,” May 21, 2009.
0 5 10 15 20 25
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
Trang 6questions about Rowland’s mental health prompted prosecutors to agree to aPLEAbargain
in which she pleaded guilty to two counts of third-degree felony child endangerment instead
She was sentenced to drug and mental health treatment and 18 months probation A few months earlier, a Hawaiian mother was charged with manslaughter in the death of her newborn son resulting from methamphetamine poison-ing Similarly, a California woman was sen-tenced to life in prison for the poisoning of her newborn through methamphetamine-tainted breast milk
In October 2003, the U.S Supreme Court denied certiorari, without comment, of an appeal involving a woman convicted and sentenced to 12 to 20 years for the drug-related death of her stillborn child McKnight v South
Carolina, No 02-1741) In that case, Regina McKnight tested positive for cocaine while in the hospital, after which she delivered a stillborn child with drugs in its system McKnight was convicted of homicide under South Carolina law Evidence showed that the near-full-term infant was viable and could have survived but for the drug poisoning
States will continue to struggle with this issue
as they seek to achieve the best balance between maternal and fetal rights States will also have to consider whether or not to hold criminally liable women whose use of legal substances such as alcohol or tobacco harms the fetus
Fetal Protection Policies Fetal protection policies bar fertile women from specific jobs out of fear that those jobs may
Willow Island, West Virginia, Women
Paid the Price of Fetal Protection
Policies
T
B
he 1991 U.S Supreme Court ruling that
declared fetal protection policies to be a
violation of civil rights laws came too late for five
women from West Virginia who were forced by their
employer to choose between undergoing a
steriliza-tion procedure to avoid health risks associated with
their higher paying jobs, remaining fertile but moving
to lower paying jobs, or quitting their jobs altogether
(International Union, UAW v Johnson Controls, Inc.,
499 U.S 187, 111 S Ct 1196, 113 L Ed 2d 158[1991])
The women worked at an American Cyanamid factory
in Willow Island, a poor region where decent-paying
jobs were scarce They were all among the first
women to work in these factories, which, before 1974,
had employed only men
In 1978 the company introduced a policy that no
fertile women would be allowed to work in its lead
pigments department The company claimed that
hazardous chemicals in that department might harm
women’s reproductive system Fertile women under
age 50 would have to be sterilized or take jobs in
other areas of the company, virtually all of which
paid less Men, whose reproductive system might
also be damaged by lead, were not subject to restrictions
The seven women then employed in the lead pigments department found themselves facing an agonizing choice: whether to reduce or sacrifice their income or undergo a surgical procedure that would render them unable to bear children Five of the women chose sterilization
The labor union to which the women belonged eventually took the women’s case to court, claiming that the company’s fetal protection policy repre-sented a violation of federal occupational safety standards because it required an individual to be sterilized in order to be eligible for work The union lost the case in the federal appeals court (Oil, Chemical, & Atomic Workers International Union v
American Cyanamid Co., 741 F.2d 444 [D.C Cir
1984]) However in the 1991 Supreme Court ruling, this decision was reversed
CROSS REFERENCES Abortion; Civil Rights Acts; Women ’s Rights.
Trang 7cause harm to any embryos or fetuses the
women might be carrying These policies came
into widespread use by many companies during
the 1970s and 1980s, before a 1991 U.S
Supreme Court decision, UAW v Johnson
Controls, 499 U.S 187, 111 S Ct 1196, 113 L
Ed 2d 158, declared them a form of sexual
discrimination that violates Title VII of the Civil
Rights Act of 1964 (42 U.S.C.A § 2000e et seq
[1982]) Despite the Court’s decision in Johnson
Controls, those critical of fetal protection
policies feared that the policies would be
continued in more subtle forms
Johnson Controls grew out of a fetal protection
policy created in 1982 by Johnson Controls, an
automobile battery manufacturer The company’s
policy excluded pregnant women and women
capable of bearing children from battery
manufacturing jobs The company maintained
that the jobs in its manufacturing plant exposed
women to levels of lead that might harm any
embryo or fetus they might be carrying
In 1984 a group of Johnson Controls
employees, together with their LABOR UNION,
the United Automobile, Aerospace, and
Agri-cultural Implement Workers of America
(UAW), filed aCLASS ACTIONsuit in federal court
challenging the company’s policy They charged
that the policy constitutedSEX DISCRIMINATIONin
violation of federal civil rights law
In the final ruling on the case, the U.S
Supreme Court held that fetal protection
policies unfairly discriminate against women
because they do not demand that men make a
similar choice regarding the preservation of
their reproductive health in a potentially
hazardous workplace
Companies that have created fetal
protec-tion policies argue that they are necessary to
protect their employees Critics of fetal
protec-tion policies maintain that they effectively
exclude all women aged 15 to 50 from
well-paying jobs unless the women can prove they
have been sterilized They also contend that
such policies raise privacy questions because
they often require women to provide proof that
they cannot have children in order to take
specific jobs Critics also point to instances in
which women have undergone sterilization
procedures because they faced the loss of
high-paying jobs Other critics argue that male
reproductive organs may also be affected by
hazardous substances in such a way that a fetus
might be harmed Nevertheless, no company is known to have created similar policies for men
FOURTH AMENDMENT SEARCH AND SEIZUREcases can also touch on fetal rights In Ferguson v City
of Charleston, 532 U.S 67, 121 S Ct 1281, 149
L Ed 2d 205 (2001), the Supreme Court ruled
on a case concerning nonconsensual drug testing of pregnant women In Ferguson the state argued that the drug testing was performed
as a measure to help protect unborn fetuses and that these searches fell under the“special needs”
exception to the Fourth Amendment Cases recognizing the exception have employed a balancing test weighing the harm caused by the warrantless intrusion on the individual’s privacy interest against the “special needs” that supported the intrusion The court held that the South Carolina state hospital’s drug testing of pregnant patients to obtain evidence for law enforcement purposes does in fact violate the Fourth Amendment The majority rejected the state’s argument that testing fell within the
“special needs” exception to the Fourth Amend-ment The court said the state’s interest in using the threat of criminal sanctions to deter pregnant women from using drugs does not justify a departure from the general rule that an official nonconsensual search is unconstitutional
if not authorized by a valid warrant The court further held that the drug tests, conducted by the Medical University of South Carolina, constituted
an unreasonable search if the patient had not consented to the procedure
In 2004, after five years of contentious political and legal disagreement, the 108th Congress passed, and President Bush signed into law, the Unborn Victims of Violence Act that expanded the legal rights of unborn infants who may be harmed as a result of assault or violence committed against pregnant women
The new law effectively established two separate crimes committed against a pregnant woman:
one against her and one against her unborn child This was significant in that it represented the first time ever that federal law recognized an embryo or fetus as a distinct person It neither affected nor altered any state law
Notwithstanding its final passage, the law is limited in scope It applies only to instances where harm to a fetus occurs during the com-mission of a federal crime against the pregnant mother Examples of federal crimes include drug-related shootings, attacks that occur on
Trang 8federal lands or military bases, or terrorist attacks Assailants may be convicted of both crimes even if they are unaware that the adult female victim is pregnant Moreover, the law protects both viable and unviable fetuses from conception It expressly defines an unborn child
as“a member of the species homo sapiens, at any stage of development, who is carried in the womb.” It further declares that the punishment for the separate offense to the unborn child is the same as that provided under federal law for the crime to the mother
FURTHER READINGS Bates, Kelly F 1995 “Cesarean Section Epidemic: Defining the Problem, Approaching Solutions.” Boston University Public Interest Law Journal 4.
Blank, Robert H 1992 Mother and Fetus: Changing Notions
of Maternal Responsibility Westport, Conn.: Green-wood Press.
Condoll, Blair D 1994 “Extending Constitutional Protec-tion to the Viable Fetus: A Woman ’s Right to Privacy.”
Southern University Law Review 22 (fall).
Faludi, Susan 1991 Backlash: The Undeclared War on American Women New York: Crown.
Manian, Maya 2009 “The Irrational Woman: Informed Consent and Abortion Decision-Making ” Duke Journal
of Gender Law & Policy, 2009.
Samuels, Suzanne Uttaro 1995 Fetal Rights, Women’s Rights: Gender Equality in the Workplace University of Wisconsin Press.
Wellman, Carl 2002 “The Concept of Fetal Rights.” Law and Philosophy 21 (January).
CROSS REFERENCES Child Abuse; Drugs and Narcotics; Fetal Tissue Research;
Parent and Child; Physicians and Surgeons.
FETAL TISSUE RESEARCH Fetal tissue research is scientific experimentation performed upon or using tissue taken from human fetuses
Although fetal tissue research has led to medical advances, including the development of the polio and rubella vaccines in the 1950s, it has also generated controversy because of its use
of fetuses from elective abortions Fetal tissue research has been subject to strict government regulation and periodic moratoriums on federal funding The National Institutes of Health (NIH) Revitalization Act of 1993 (Pub L No 103-43 [42 U.S.C.A §§ 289g-1, -2]) regulates many aspects of fetal tissue research
History Fetal tissue research has been conducted in the United States since the middle of the twentieth
century Its practice became more common as the amount of biomedical research increased and as restrictions on the availability ofABORTION
decreased Research on fetal tissue led to significant advances in the scientific understand-ing of fetal development and in the diagnosis and treatment of fetal diseases and defects, including the development of amniocentesis as a diagnostic tool It also played a role in advancing the scientific understanding of cancer, immunology, and transplantation
Because fetal tissue grows more rapidly, is more flexible than other human tissue, and is less likely to be rejected by the immune system,
it has also been used to treat diseases through transplantation Fetal tissue transplantation usually involves the injection of fetal cells into
a diseased organ such as the brain or pancreas Many scientists believe that fetal tissue trans-plantation will lead to significant new develop-ments in medical science Researchers have already had limited success in using fetal tissue transplants to treat patients with Parkinson’s disease, diabetes, Alzheimer’s disease, and other illnesses Although most medical ethicists agree that these new procedures hold great promise, they warn that the use of fetal tissue must be strictly regulated to avoid ethical abuses Law
Fetal tissue research became a subject of controversy in U.S law following the 1973 U.S Supreme Court decision in ROE V WADE
(410 U.S 113, 93 S Ct 705, 35 L Ed 2d 147), which protects the right of a woman to have an abortion in the first and second trimesters of pregnancy After Roe, research performed on fetuses obtained from elective abortions came under close scrutiny
In 1974 the National Research Act (Pub L
No 93-348) created a national commission to oversee research that involves fetuses This body released research guidelines and also placed restrictions on what types of fetal research might be allowed to receive federal funding
In 1988 NIH scientists requested approval from the DEPARTMENT OF HEALTH AND HUMAN SERVICES(HHS) to begin transplantation experi-ments using fetal brain tissue Because the administration of PresidentRONALD REAGAN was concerned about the link between fetal tissue research and abortion, the HHS imposed a temporary moratorium on federal funds for
Trang 9research in fetal tissue transplantation
Al-though a 21-member NIH panel later approved
the use of human fetal tissue for transplantation
and disagreed with the contention that such
research would cause more abortions, the
moratorium was extended indefinitely in 1989
by Secretary Louis W Sullivan of the HHS
In subsequent years, legislation to overturn
the moratorium repeatedly failed in Congress
Then, shortly after taking office in 1993
President BILL CLINTON ordered the end of the
moratorium (58 Fed Reg 7457) Later in 1993
Congress passed the NIH Revitalization Act,
which permits the tissue from any type of
abortion to be used for fetal tissue research The
law includes elaborate consent and
documenta-tion requirements that attempt to separate the
mother’s decision to abort from the decision to
donate fetal remains It also criminalizes the sale
or purchase of fetal tissue and the designation of
the recipient of fetal tissue
Soon after President GEORGE W BUSH took
office in January 2001, the controversy over fetal
tissue research found itself again in the public
spotlight In a nationally televised speech during
prime time, the president presented new
national policies involving embryonic stem cell
research An embryonic stem cell is a kind of
master cell taken from a 5-day-old embryo that
can develop into virtually any type of body
tissue Researchers believe those specialized cells
could then be transplanted into patients to
correct disorders such as diabetes, Alzheimer’s,
heart disease and spinal cord paralysis
In his speech on embryonic stem cell
re-search, Bush announced a policy of continued—
though severely limited—federal funding for
embryonic stem cell research This approval is
strictly limited to 60 existing genetic lines of
embryonic stem cells Additionally, he
an-nounced the creation of a council to develop
federal guidelines and monitor embryonic stem
cell research He expressed concern over the
conduct of embryonic stem cell research that had
been privately funded, often done in secret, and
conducted without regulation But the limits
imposed by the president, particularly those
ex-cluding new stem cell lines developed from
embryos, would slow the pace of scientific
dis-covery in this area
Bush’s 2001 policy remained in force until
the election ofBARACK OBAMAin 2009 Less than
two months after taking office, Obama issued
an EXECUTIVE ORDER lifting the ban on research beyond the 60 cell lines known to exist in 2001
Obama’s order directs the National Institute of Health to draft guidelines for federal funding for future embryonic stem cell research
The Debate Those opposed to fetal tissue research have made a number of arguments against the use of fetuses from elective abortions Morally opposed
to abortion itself, they argue that the fetal tissue researcher is complicit in the destruction of the fetus and that fetal tissue research will create incentives for more abortions Moreover, they maintain that a woman who has an abortion cannot legally authorize research on the aborted fetus because she has abandoned her parental responsibility through the act of abortion They also argue that fetal tissue research can and should be restricted to fetuses from spontaneous abortions and ectopic pregnancies
Those who favor fetal tissue research contend that it has already led to significant medical gains that have saved and improved many lives and will continue to do so They argue that researchers have an ethical duty to relieve suffering and cure diseases and that fetal tissue research contributes greatly to this cause
President Barack Obama finalizes
an executive order removing restrictions
on stem cell research.
CHIP SOMODEVILLA/ GETTY IMAGES
Trang 10They also contend that researchers must continue to have access to ethically obtained fetuses They hold that the tissue of fetuses from elective abortions has far fewer defects and is much easier to obtain than that of fetuses from nonelective abortions or ectopic pregnancies
FURTHER READINGS American Society for Cell Biology 2001 “Position Paper on Bush Decision on Federal Funding of Stem Cell Research ” Available online at http://www.ascb.org/
index.php?option=com_content&view=article&id=317&
Itemid=31 (accessed September 29, 2009).
Beller, Fritz K., and Robert F Weir, eds 1994 The Beginning
of Human Life Boston: Kluwer.
Goddard, James E 1996 “The NIH Revitalization Act of
1993 Washed Away Many Legal Problems with Fetal Tissue Transplantation Research but a Stain Remains ” Southern Methodist University Law Review 49 (January–
February).
“Obama Overturns Bush Policy on Stem Cells.” CNN.com.
March 9, 2009.
Taylor, Betty W., et al 1999 Feminist Jurisprudence, Women, and the Law: Critical Essays, Research Agenda, and Bibliography Littleton, Colo.: Fred B Rothman.
CROSS REFERENCES Fetal Rights; Women ’s Rights.
FEUDALISM
A series of contractual relationships between the upper classes, designed to maintain control over land
Feudalism flourished between the tenth and thirteenth centuries in western Europe At its core, it was an agreement between a lord and a vassal A person became a vassal by pledging political allegiance and providing military, politi-cal, and financial service to a lord A lord possessed complete sovereignty over land, or acted in the service of another sovereign, usually
a king If a lord acted in the service of a king, the lord was considered a vassal of the king
As part of the feudal agreement, the lord promised to protect the vassal and provided the vassal with a plot of land This land could be passed on to the vassal’s heirs, giving the vassal tenure over the land The vassal was also vested with the power to lease the land to others for profit, a practice known as subinfeudation The entire agreement was called a fief, and a lord’s collection of fiefs was called a fiefdom
The feudal bond was thus a combination of two key elements: fealty, or an oath of allegiance and pledge of service to the lord, and homage, or
an acknowledgment by the lord of the vassal’s
tenure The arrangement was not forced on the vassal; it was profitable for the vassal and made
on mutual consent, and it fostered the allegiance necessary for royal control of distant lands The bond between a lord and a vassal was made in a ceremony that served to solemnize the fief The vassal knelt before the lord and placed his hands between those of the lord as a sign of subordination Immediately afterward, the lord raised the vassal to his feet and kissed him on the mouth to symbolize their social equality The vassal then recited a predeter-mined oath of fealty, and the lord conveyed a plot of land to the vassal
In the seventeenth century, more than three centuries after the death of this particular social practice, English scholars began to use the term feudalism to describe it The word was derived
by English scholars from foedum, the Latin form
of fief The meaning of feudalism has expanded since the seventeenth century, and it now commonly describes servitude and hierarchical oppression However, feudalism is best under-stood as an initial stage in a social progression leading to private ownership of land and the creation of different estates, or interests in land Before feudalism, the European population consisted only of wealthy nobility and poor peasants Little incentive existed for personal loyalty to sovereign rulers Land was owned outright by nobility, and those who held land for lords held it purely at the lords’ will Nevertheless, the feudal framework was
preced-ed by similar systems, so its exact origin is disputed by scholars Ancient Romans, and Germanic tribes in the eighth century, gave land
to warriors, but unlike land grants under feudalism, these were not hereditary
In the early ninth century, control of Europe was largely under the rule of one man, Emperor Charlemagne (771–814) After Charlemagne’s death, his descendants warred over land owner-ship, and Europe fell apart into thousands of seigniories, or kingdoms run by a sovereign lord Men in the military service of lords began to press for support in the late ninth century, especially in France Lords acquiesced, realizing the importance of a faithful military
Military men, or knights, began to receive land, along with peasants for farmwork Even-tually, knights demanded that their estates be hereditary Other persons in the professional service of royalty also began to demand and