The hypothesis of paternal rights and fetal rights emerged in a bid to control women's exercise of their reproductive rights. Of these, fetal rights have posed critical jurisprudential challenges to the perception of women's rights to control their fertility. The debate has also raised the ethical issue of whether a fetus has any rights, and if so, when is a fetus a viable; does a fetus have "personhood" Fetal "personhood" has become a tool to challenge women's rights of self-determination with respect to their bodily integrity. This paper attempts to examine the extent to which a woman has such a right of self-determination with respect to fetal/child rights.
Two United States Supreme Court decisions, Griswold v. Connecticut and Roe v. Wade, paved the way for women's reproductive rights and freedom by establishing that the right to privacy, though it did not originate in reproductive rights cases, included a woman's right to make her own private and personal decisions about her reproductive choices. In particular, it was held in the Roe vs. Wade (Roe v.
Wade 410 US 113 (1973), that the "right to privacy", enshrined in the Fourteenth Amendment's "concept of personal liberty" " is broad enough to encompass a woman's decision" whether or not to terminate her pregnancy.
In 1992, in Planned Parenthood v. Casey, upheld women's right to control their fertility. However, the court replaced Roe's strict scrutiny standard of review with the less protective "undue burden" standard. Applying this undue burden standard, the court upheld previously unconstitutional regulations on abortion such as mandatory waiting periods and permitted restrictions that necessarily delayed women from obtaining abortions, while admitting that such restrictions must provide an exception that would allow a woman to obtain an immediate abortion if delay posed a significant threat to her health. Blackmun's separate opinion in the case held that "A State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality"; Stevens, J., in a separate opinion, agreed, stating that "Roe is an integral part of a correct understanding of both the concept of liberty, and the basic equality of men and women." (Linda Greenhouse, 1994).
Since 1995, there have been several moves to ban abortion. In Nebraska, for instance, the law prohibited procedures for abortion under Partial Birth Abortion. However, a Supreme Court decision in Stenberg, Attorney General of Nebraska, et al. v. Carhart, 530 U.S. 914 (2000) held that the law could be construed to apply to other forms of abortion, rather than merely D&X: they could apply to D&E processes that are used to terminate early pregnancy, in which case it could violate the "right to privacy" as described in Roe and Casey. The court added that an exception for mother's health, as required by the Doe decision, was also not incorporated in the ban.
In 2003, the US federal