Legal Personhood

3D Ultrasound of 18 Week Unborn Child

In a scholarly discussion, Professor Prosser cites a 1798 English case in which the court chides one of the attorneys for having argued the position that a fetus is not legally "a person." The court, obviously considering such an argument to be preposterous, responds as follows:

"Let us see what this non-entity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled to a charge for raising portions. He may have an injunction, and he may have a guardian." (Thellusson v. Woodford, 31 Eng. Rep. 117)


Prosser goes on to point out that modern law also recognizes the legal existence and personhood of the unborn child for many purposes. As he put it, " . . . medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law." He goes on to provide several examples:

The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of a parent.

Prosser then discusses the hypothetical situation of a pregnant woman who is tortiously injured and whose unborn child, as a result, is also either injured or killed. He condemns several pre-1946 cases which denied recovery for the personal injuries or wrongful death of the infant pointing out that, "All writers who have discussed the problem have joined in condemning the old rule and in maintaining that the unborn child in the path of the automobile is as much a person in the street as the mother . . ." (emphasis supplied). Fortunately the old rule has been abandoned. Prosser portrays the current state of the law as follows:

The child, if he is born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries an action will lie for his wrongful death.

Prior to the Supreme Court's decisions on abortion, American Jurisprudence summarized the legal "personhood" of the fetus as:

Biologically speaking, the life of the human being begins at the moment of conception in the mother's womb, and as a general rule of construction 'in the law', a legal personality is imputed to an unborn child for all purposes which would be beneficial to the infant after its birth. Thus in the law of inheritance a posthumous child is ordinarily deemed as born before the death of its parent, and in the construction of a will a posthumous child 'en ventre sa mere' at the time of the testator's death may ordinarily be included in the term 'children', 'grandchildren,' etc. A child unborn at the time of its parent's death has also been considered a 'child' of the decedent in determining beneficiaries of an award in a wrongful death action or in a workman's compensation case. The interest in an estate taken by the child at birth dates back to the time of conception or the later origination by intermediate proceeding to which it was not a party.
[To be continued]