Trends in Family Law: “Personhood” for fertilized embryos

November 9, 2011

Family Law Theme Month

(Editor’s note: Because of the shifting terrain of family law on the national level, we’ll be looking at different trends in the field throughout the month of November)

For the first post on interstate same-sex adoption, click here.

The birth of a child is normally a very happy event in most people’s lives.

Family law practitioners know, however, that this occurrence introduces many consequences for legal proceedings such as dissolution or separation, paternity, child custody, and child support.

A new constitutional amendment in the state of Mississippi would have hastened the manifestation of those consequences and added a myriad of significant complications to them.

The constitutional amendment, Mississippi Initiative Measure 26, was a ballot measure voted on yesterday in Mississippi that asked a simple question:

“Should the term ‘person’ be defined to include every human being from the moment of fertilization, cloning, or equivalent thereof?”

If it had been successful, the measure would have redefined legal personhood to include fertilized embryos.

The obvious intent of Measure 26 was to criminalize abortion in the state of Mississippi, since Measure 26 would have made performing an abortion tantamount to murder (and those women seeking abortions could have been charged with accessory or conspiracy).

Additionally, the use of contraceptives that block the implantation of a fertilized egg would also be criminalized as an act of murder.

The potential impact on abortion and contraceptives is minimal, though, compared to Measure 26’s effect on all other areas of the law.

The legal proceedings mentioned earlier are the first of such considerations.

For example, would the father have a say in the mother’s behavior?

Could he have raised issues of child endangerment and neglect if he didn’t approve of the mother’s lifestyle while pregnant?

How could custody and parenting time possibly have been calculated?

Would a recognition of parentage have needed to be signed by the father in the case of unmarried parents at the time of conception?

Would doing so have entitled the mother to child support before the child was even born?

In addition to these family law scenarios, there are many other civil and criminal situations affected.

Would state authorities have started to inquire into any and all miscarriages?

Could a mother have been criminally liable for one?

What about a child born with potentially preventable birth defects?

Could the mother of such a child, such as one born with fetal alcohol syndrome, have been sanctioned criminally?

If a pregnant woman leaves the father and doesn’t tell him where she moves to, could the mother have been liable for criminal parental kidnapping (in cases without abuse)?

Although many commentators may argue that these implications are moot since the amendment, even if it had passed, would have been quickly struck down as unconstitutional on any number of legal theories.

That’s assuming, of course, that a motion for an injunction is both heard and granted before the amendment would have taken effect (which probably isn’t possible considering the amendment would have taken effect immediately).

The issue isn’t limited to Mississippi, either.

“Personhood amendments” such as Mississippi’s are a new tactic of abortion opponents becoming increasingly popular, with similar measures either previously attempted or currently being contemplated in other states (such as Alabama, Colorado, Florida, Iowa, Montana, and Ohio).

Activists in many other states may decide to try to succeed where Mississippi failed and pass their own personhood amendment.

Unfortunately, proponents of such an amendment not only fail to understand the measure’s inefficacy in changing the legal status of abortion;

They fail to recognize the monumental legal complications created in areas completely unrelated to abortion.