When Does a Fetus Become a Person with Rights?

Human Fetus
Human Fetus.

Gandee Vasan / Getty

Abortion is the focus of some of the most intense social, cultural, political, religious, and ethical debates in modern American society. Some regard abortion as something people should be able to choose while others say abortion is a great evil which is destroying the moral fabric of society. Many of the debates turn on the status of the fetus: Is a fetus a person? Does a fetus have moral or legal rights? How we define a person and the fetus may decide the abortion debates.

Homo Sapiens

The simplest definition of a person may be "a member of the species homo sapiens, the human species." The fetus obviously has the same DNA as everyone else and can't possibly be classified as any species other than homo sapiens, so isn't it obviously a person? Assigning rights on the basis of species, however, merely begs the question of the nature of rights and what rights mean to us. The equation of rights with the human species is simple, but perhaps too simple.

DNA vs. Environment in Shaping a Person

One premise in the argument that homo sapiens are the same as persons with rights is the idea who we are today was all present in a fertilized ovum because all our DNA was there. This is wrong. Much of what we are, even physical traits like fingerprints, is not determined by DNA. An embryo may or may not split into twins or more. Twins, identical or fraternal, may join during development, leading to a single person with more than one set of DNA. Environment counts for much of what we are.

Brain Activity & Interests

Maybe we should focus on the ability to have interests: if someone is going to have a claim to a right to life, shouldn't we first require that they have an interest in living and continuing to live? An ant has no conception of self and no interest in living, so has no right to life, but an adult human does. Where on this continuum does a fetus fall? Not until the necessary brain connections and activity exist, and that's not until several months into a pregnancy.

Independent Life

If someone has a claim to a right to live, shouldn't they have some sort of independent life of their own? A fetus is only able to live because it is attached to the womb of the mother; therefore, any claim to a "right" to live must necessarily be at the expense of the woman. The same isn't true of anyone else - at most, a person's claim might entail support and help from the community at large. It would not, however, entail being hooked up to the circulatory system of another human.


For many religious believers, a person has rights because they are endowed by God with a soul. It is thus the soul that makes them a person and requires that they are protected. There are different opinions, though, on when a soul appears. Some say conception, some say at "quickening," when the fetus begins to move. The state has no authority to even declare that a soul exists, however, much less pick one religious conception of the soul and decide when it enters a human body.

Legal Persons & Legal Protections for Non-Persons

Even if the fetus isn't a person from a scientific or religious perspective, it could still be declared a person in a legal sense. If corporations can be treated as persons under the law, why not a fetus? Even if we decided that a fetus isn't a person, that doesn't necessarily answer the question of whether abortion should be illegal. Many non-persons, like animals, are protected. The state could theoretically assert an interest in protecting potential human life, even if it isn't a person.

Does It Matter if the Fetus Is a Person?

Whether the fetus is declared a person from a scientific, religious, or legal perspective, this would not necessarily mean that abortion is wrong. A woman could assert a right to control her body such that even if the fetus is a person, it has no legal claim to use it. Could an adult claim a right to being hooked up to someone's body? No - it might not be ethical to refuse the use of one's body to save the life of another, but it couldn't be forced by the law.

Abortion Is Not Murder

It is assumed that if the fetus is a person, then abortion is murder. This position is incompatible with what most people believe, even most anti-choice activists. If the fetus is a person and abortion is murder, then those involved should be treated like murderers. Almost no one says that either abortion providers or the women should go to jail for murder. Making exceptions for rape, incest, and even the mother's life are also incompatible with the idea that abortion is murder.

Religion, Science, and the Definition of Humanity

Many may assume that a proper definition of "person" would end debates over abortion, but the reality is more complex than this simplistic assumption allows. Abortion debates involve debates about the status and rights of the fetus, but they are also about far more. It is arguable that the right to an abortion is primarily a right of a woman to control what happens to her body and that the death of the fetus, person or not, is an unavoidable consequence of choosing not to remain pregnant.

It is little wonder that many people are anti-abortion in the sense of not approving of the death of a fetus, but pro-choice because they regard the right of a woman to choose what happens to her body as fundamental and necessary. For this reason, then, anti-abortion activists in America are best described as anti-choice because the ability of women to choose is the political issue.

This doesn't mean that the status of the fetus is completely irrelevant or that debates about whether the fetus is a "person" are uninteresting. Whether we think of the fetus as a person or not will have a significant influence on whether we think of abortion is ethical (even if we think it should remain legal) and what sorts of restrictions we think should be placed on those choosing to have an abortion. If the fetus is a person, then abortion may still be justified and outlawing abortion may be unjustified, but the fetus could still deserve protections and respect of some sort.

Respect, perhaps, is the issue which deserves much more attention than it currently receives. Many of those opposed to choice have been drawn in that direction because they believe that legalized abortion cheapens human life. Much of the rhetoric of the "culture of life" has force because there is something disturbing about the idea of treating the fetus as unworthy of respect and consideration. If the two sides could come closer together on this matter, perhaps the disagreements remaining would be less rancorous.