I’m trying to find out when a fetus legally becomes a person under Washington State law. My google-fu is failing me. Does anyone know the this particular factiod or know where I can find the answer?
I don’t think a fetus ever is a person, in the full sense of the word, in any state. Federal law allows abortion at any time if the life of the mother is threatened. There might be some restrictions on the type of abortion allowed, but it is allowed if that’s the only way to save the life of the mother.
What you probably want to know is when abortion “on demand” is no longer an option for a woman-- ie, if the life or health of the mother is not threatened. Is that correct?
Actually I’m not looking for abortion law. I have a pregnant patient who will likely be an unfit mother for reasons I won’t go in to here and at some point we will have to involve CPS to determine if she should lose custody of the child. Right now they can’t do anything because the fetus is not legally a person and thus cannot be abused. So I’m trying to figure out if there is any point prior to birth when the fetus becomes a legal person.
I don’t know what “CPS” is, but I still think you are asking the wrong question. A fetus never becomes a person under US law. It may be granted certain aspects of personhood at differing points during the development process, but that depends on what that aspect is.
CPS is Child Protective Services. Let me see if I can refine the question. At what point, if any, does a fetus gain sufficient aspects of personhood that the effects of the mother’s actions/behavior on the fetus can be considered in future child custody proceedings? For example - is there any point in gestation beyond which actions that adversely affect the fetus can be actionable as child abuse?
Anecdotally, from someone who works in a hospital in your state (since nobody else has replied)…
Assuming her unfitness is due to substance abuse (other than alcohol), they will try to do a drug test on her once the baby is born. If she’s recently been in drug treatment, they may also have some leverage. If she admits to recent drug use, or the test comes up positive, CPS is involved.
I don’t know where you’re working right now, but it really seems that if she’s not in “the system” in some way (eg, on parole and having to take drug tests) there’s little you can do until the baby is born. I think there are ways to manage women who have to be on bed rest as well.
Sorry to not be much help (or telling you stuff you already know), but if nothing else I bumped your thread.
I’m no lawyer, just throwing out some ideas:
If she is engaging in dangerous behaviors, does it really matter whether the fetus is an independent person or not? She is causing harm to an independent fetus, or she is causing harm to one of her own organs. Either way, the critical factors will not be the personhood of the fetus, but the degree of danger to which she is subjecting it.
This post is worth almost as much as the paper it is written on!
My WAG is that ***after ***the baby is born, she may be held responsible, retroactively, for damage she deliberately caused during the pregnancy. Again, this is just my WAG.
Are you a doctor? If not, in what capacity are you caring for the patient?
In Washington state, call 1-866-ENDHARM to report suspected child abuse. You can do it anonymously. They will know if and when they can take action - it shouldn’t be your responsibility to chase down the legal aspects of this.
I’m a lawyer in your state, but I’m not your lawyer. I don’t know squat about this area of law. Common sense does suggest that a court is unlikely to start child custody proceedings on behalf of a fetus, though, since the court can’t exactly remove it from the custody of the mother.
I am a medical student. If I were a full grown doctor I would just call for a consult with someone from Ob or social work who knows the proper procedures. Or maybe I’d “suggest” that it would be an interesting thing for my med student to research.
It’s happened. That’s one of the things I was able to find. A pregnant woman had a surgical procedure during which she lost more blood than anticipated. When her docs recommended a blood transfusion she told them that she was a Jehovah’s Witness and refused the transfusion. The court granted someone temporary guardianship of the fetus so that the fetus could get the transfusion, which mean transfusing the woman against her will. The ruling was overturned on appeal of course but by that time the transfusion had already been done.
Then you should raise your concerns with the patient’s doctor. However, in all probability the doctor is already aware of whatever you are concerned about.
Up until the time of viability* the embryo and fetus have no protection whatsoever; if a gravid woman is entitled specifically to kill the fetus I think it would be hard to argue she is proscribed from injuring it. Under Washington law, I believe the right to an abortion up until the time of viability is specifically spelled out. http://apps.leg.wa.gov/RCW/default.aspx?cite=9.02.110
What happens after the fetus is viable when the mother is negligent toward her fetus is an interesting legal question, but I am betting it would not be successfully prosecutable in a state such as Washington where the emphasis has been on protecting the rights of the mother over the viability of the fetus.
- “Viability” means the point in the pregnancy when, in the judgment of the physician on the particular facts of the case before such physician, there is a reasonable likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures." http://apps.leg.wa.gov/RCW/default.aspx?cite=9.02.170
We usually refer to social services who refers onward as needed.
A positive drug test during pregnancy does not get reported. A positive test at delivery does.
A CPS referral can be used if there are other children in the home.
A guardian ad litem is not a custodian, and the proceedings you describe are not a custody hearing. Further, given that it was overturned on appeal, a court would be unlikely to do the same thing again in another case in the same jurisdiction (did this happen in Washington?)
I can’t comment on this situation, but know that after the infant is born to a blood refusing Jehova’s Witness, a court order can be obtained for transfusion for the infant (of course, if it is needed). This tends to absolve the parents of responsibility and makes it “O.K.” to treat the infant since they had no choice in the matter.
I think I remember a case where a woman was prosecuted for giving drugs to her child when, just after the child was born, she was still delivering narcotic-tainted blood to the child via the umbilical cord.
This is probably why it’s a blood test AT delivery that they can nail you for (at least that’s “common knowledge”, but it may be false for all I know), not during pregnancy. Still, I’d be interested in seeing a cite for this. Sounds like one of those “Al Capone tax evasion” creative crimes - catch 'em doing something vaguely illegal if you can’t nail 'em on the real issue. The important thing to the prosecutor was probably removing a child from an unsafe environment, and that was the only crime he could prove.