Catherine Mills

In lieu of an abstract, here is a brief excerpt of the content:Making Fetal PersonsFetal Homicide, Ultrasound, and the Normative Significance of BirthCatherine MillsIn early 2012, the then attorney general of Western Australia, Christian Porter, announced plans to introduce fetal homicide laws that would “create a new offence of causing death or grievous bodily harm to an unborn child through an unlawful assault on its mother” (Porter 2012). While well established in the United States, fetal homicide laws are only beginning to take shape in Australia.1 The proposed law would mean that if an offender assaulted a woman and thereby caused the death of the fetus she was gestating, the courts would be required to impose a sentence of life imprisonment in all but exceptional circumstances—equivalent to the penalty for murder. While the proposed fetal homicide law is said to give appropriate recognition to the grief and suffering of the woman involved—and while it may help to do that—this is certainly not all it would do.2 For it would also give existence to a new legal subject in Western Australia, that is, the “unborn child”: currently, under Western Australian law a child is only legally capable of being murdered when already external to the mother’s body. Thus, the woman’s body constitutes a kind of “natural” basis for a legal boundary—one that the proposed law transgresses and perhaps obliterates, at the same time as it purports to recognize the trauma associated with the transgression and obliteration of that boundary by another.Fetal homicide laws thus traverse difficult territory in the maternal-fetal relationship, in which actions against one person come to constitute a crime against another. Significantly, these laws are typically formulated to provide legal protection for pregnant women against the intrusions of a third party against [End Page 88] their person. However, it may be that they can also be interpreted more generally to provide legal protection for the fetus against others. So construed, such laws open up a danger for pregnant women themselves, insofar as their actions threaten the life and well-being of the fetus they carry. One recent example of the exploitation of this ambiguity in fetal homicide laws is the case of Bei Bei Shuai, a young woman of Chinese descent who faced felony charges of murder in Indiana after a failed suicide attempt resulted in the death of the thirty three week old fetus she was gestating (Pilkington 2011, 2012). If a woman’s actions against herself, leading to the death of her fetus, can be legally construed as murder, where does this leave the law on abortion? The Western Australian attorney general insisted that the proposed law would not affect laws on abortion in any way, since it would not encroach on a woman’s right to make decisions about her pregnancy (Porter 2012). But a woman’s decisional rights in regards to her pregnancy are at best an unstable dividing line; at worst, it is precisely her decision to terminate a pregnancy—that is, to intentionally bring about the death of the fetus—that substantiates a murder charge. Indeed, at the crux of the Shuai case was her suicide note, in which she apparently stated her intent to kill her fetus.This ambiguity between abortion and fetal homicide has been the topic of much discussion in legal literature, and it raises significant questions that bear further investigation. For one, it raises in a particularly pointed way questions about the moral and legal significance of birth, and the bearing it has on the status of the fetus. Birth has historically been significant in establishing personhood, but this reliance on birth is challenged by the shift to treating the fetus as a person for the purposes of some areas of the law. The further question then arises of whether that status must remain consistent across domains of the law, such as those addressed to the death of a fetus at the hands of a third party, and those on abortion. While these questions have been well canvassed in legal discussions, we might also consider the impact that technologies such as obstetric ultrasound have on notions of fetal life and personhood. Advances in medical technologies appear...

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The practice of terminating a pregnancy following the diagnosis of a fetal abnormality raises questions about notions of bodily normality and the ways these shape ethical decision-making. This is particularly the case with terminations done on the basis of ostensibly minor morphological anomalies, such as cleft lip and isolated malformations of the limbs or digits. In this paper, I examine a recent case of selective termination after a morphology ultrasound scan revealed the fetus to be missing a hand . Using the work of Georges Canguilhem, I show that a person with acheiria could be considered normal. Further, I show that this case reveals a kind of “undecidability” in the significance of fetal sex/gender and disability in termination. From this, I consider the conceptual interaction of disability with sex/gender, to argue that the ethics of disability termination are not as distinct from those of sex/gender selection as is commonly supposed