Pro-life advocates often scoff at fetal homicide laws, arguing that they represent just how schizophrenic our legal system is when it comes to the unborn. On the one hand our legal system says the unborn are not persons, and therefore they can be killed per the mother’s request. On the other hand, fetal homicide laws treat the unborn as a person, allowing for an individual who kills an unborn child without the mother’s consent to be prosecuted for murder. The legal distinction is based almost entirely on the mother’s will. If she wants the child, it is illegal for someone else to kill it. If she does not want the child, it is legal for someone else to kill it.
While I am pro-life, I want to argue that the current law is consistent in its treatment of abortion and fetal homicide. Just because the unborn are not deemed persons with legal status—and can be killed at the mother’s request—does not mean the state could or should allow anyone to kill an unborn child without consequence. If the unborn is not a person, then it is property, and the same laws we apply to property must be applied to the unborn as well.
As a general rule, people have a right to do what they wish with their personal property. I own a collection of books. Because they are my property, I am free to do what I want with them. I could choose to keep them, or burn them. The same is not true of any one else, however. If someone took my books from my home without my permission and burned them in my front yard, he would be prosecuted because he destroyed property that did not belong to him. But if I gave him my books, or if I asked him to burn my books, then he is free to burn them without consequence.
Similarly, the mother is free to do what she wants with her property: the unborn child. She can choose to keep it, or kill it. If she gives permission to a third party to kill her unborn baby, then she has consented to have her property destroyed, and no one can be prosecuted for having done so. If, however, someone kills her unborn baby without her permission, they have destroyed property that did not belong to them and should be prosecuted. Given the view that the unborn are property rather than persons, it makes sense to have laws protecting a woman’s right to kill her “property,” as well as fetal homicide laws to prosecute those who rob a woman of her property without her consent.
Perhaps the reason pro-lifers see the law as being inconsistent is because they think fetal homicide laws are meant to protect the rights of the unborn. This is not true. Fetal homicide laws are mean to protect the rights of the mother. Both abortion law and fetal homicide laws treat the unborn as property, and exist to protect the right of mothers to do what they wish with their unborn child. The problem is not that these laws are in conflict with one another, but that they disregard the personhood of the unborn.
Perhaps a true example of schizophrenia in the law regarding the unborn is abortion law and inheritance law. An unborn child can be considered a person with legal standing in inheritance cases. If the unborn is mere property, how can it have legal status and even be the beneficiary of property/finances? That seems a bit inconsistent. Perhaps Paco can add more details, other examples, or correct any deficiencies in my argument.
In this case, it is considered the mother’s property since it bears her genetic material and is housed in her womb.