I was reading this thread, where a mention was made of personhood for fetuses. I had an interesting thought about that. If a fetus is legally a person, what sort of legal situations can they get themselves into other than the law stepping in to protect them from being aborted? I know this sounds silly, but work with me here. Can a fetus be sued? Can a fetus be subject to juvenile delinquency proceedings? Can custody of a fetus be adjudicated before birth?
I imagine you could sue for custody after the child is born, if you thought the child’s mother was unfit. Other than that, it’s difficult to imagine what a fetus might do that could lead to a lawsuit. It’s basically like suing a newborn baby: what sort of offense would even be possible?
I seem to recall the junior Madoff committed suicide because he was at least somewhat distraught that his children were named defendants in lawsuits seeking funds he and Bernie had placed in trust funds for them.
Basically, without personhood, I’d guess (IAN even remotely AL) they can’t be sued. But if you an adult can establish a trust fund or insurance policy on their behalf, and that adult has wronged someone, I’d suspect that’d be a reason why you’d want to sue a infant, newborn, fetus – heck, if you can establish a trust fund for a person not even a yet glimmer in their parent’s eye, maybe you can even sue possible children?
Well, to be nitpicky, you don’t sue for “offenses”: you sue for torts. The main torts are breach of contract and negligence, and it’s hard to see how a fetus could enter into a contract or how a fetus could negligently case injury to someone. Similarly, I think it very unlikely that you could sue a 1-year-old child: it’s not old enough to enter into contracts or to have the required mental judgment to be considered negligent. For example, if a toddler found a loaded firearm and accidentally caused injury with it, I don’t think you could sue it for negligence, because I don’t think it would be old enough to understand the consequences of the action.
No Rules of Civil Procedure, state or Federal, permit a fetus to be named as a Defendant, period.
While a fetus may be a person in some states for Fetal Homicide purposes, that is criminal in nature, and they are not sued, the actor is charged.
Well sure, but if the law considers them persons, it’s only a matter of time before civil procedure is harmonized to treat them as persons too.
The only thing I could think of is if a woman were injured by the pregnancy (as they all are to greater or lesser extent) or, more likely, the labor. You could maybe sue the fetus in such a situation, although I can’t imagine you have a winner – infancy is typically a defense to torts sounding in negligence IIRC. Pre-infancy seems like it would be even moreso.
–Cliffy
“A fetus and a corporation walk into a bar…”
Sued…for what?
Collecting damages is going to be problem.
Garnish the mother’s milk, maybe?
Could a fetus be an heir, and some procedure contesting a will somehow result in it being a defendant?
I would think this could be a possibility even with current legal standards of a fetus. Inheritance rights based on if that fetus is considered a heir and also based on legitimacy (who the father is)
Yes, if it were declared to be a person, a fetus could be a beneficiary under a contract, trust, insurance policy, or will. Litigation over the terms or the validity of any of those instruments could cause the fetus to be named as a defendant.
From the other side, such a fetus could be a member of a plaintiff class, for instance as part of a group of persons all living in the same area or who all took the same drug.
For comparison’s sake, all of this is true under current law for a baby.
If a fetus (or embryo, zygote, etc.) is deemed a person, everyone who is pregnant for even one day should be able to claim it/him/her as a dependent for tax purposes.
After having a positive pregnancy test, a woman should be able to take out a life insurance policy on the embryo that will pay if there is a spontaneous miscarriage.
Maybe the mother could sue it for pain and suffering?
And the fetus countersue 
And the mother should be able to drive in the car pool lane.
If a foetus is a person, surely inheritance and intestacy issues follow?
Just curious is the pronunciation different for foetus then fetus? When I see foetus I usually take it as ‘fotus’.
How do you pronounce “Oedipus”?
Nice line about the car lanes. I’d love to see some pregnant women in a Personhood Now!!! state contest that ticket.
Roman law (and thus much continental European law, and South African law) has the principle nasciturus pro iam nato habetur, quotiens de commodis eius agitur which basically means that foetuses are considered to be people for the purpose of inheritance (but only if they are subsequently born alive). For the board’s legal experts: is there no such rule in Anglo-American common law?