Orphans in utero: Expansions of the child protective regime into the womb through fetal separatist policies

In recent years, more states have seen attempts to introduce measures that legally sever the bonds between a pregnant woman and the fetus she carries. Treating fetuses as though they were not inside a woman's body has served to perpetuate the idea that fetuses are in need of “protection” from the women who carry, sustain, nurture and birth them. It also has the consequence of undermining the rights of birthing women by inviting child protective authorities to respond to perceived risks to fetuses in the same way they address perceived risks to children: through disruptive investigations and punitive interventions in which mother and child are cast as adversaries. As a result, law guardians have been appointed for fetuses, and women have been charged with both civil and criminal abuse and neglect based on decisions about their prenatal care, including location of birth, exercise of right to informed refusal of medical care, and adherence to doctor-prescribed methadone maintenance. Cases from around the country demonstrate that as fetal separatist legislation gains ground, women will increasingly be subject to criminal and especially child welfare interventions based on their pregnancies. This session proposes that the expansion of the child welfare regime to police women's pregnancies is a barrier to birth justice that has a destructive effect, especially on communities of color and low-income women. Furthermore, only when birth choices are respected as legitimate medical decisions will women have full human rights, bodily autonomy, and agency within their families and communities.