THE BLOG
06/10/2013 05:52 pm ET Updated Aug 10, 2013

At What Point Do Fetuses Have Rights? Legal Protection for Unborn Children Is Increasing

When a pregnant woman is attacked in an act of domestic violence, how many victims are there? In New Jersey, the answer to this question is becoming a little clearer thanks to a recent Superior Court ruling which says pregnant women threatened with domestic violence can now seek restraining orders for both themselves, and their unborn children.

The case in question involved two teenagers in Ocean County, unnamed in court papers, who had a disagreement over whether they should keep the child they had conceived together. Eventually, the 18-year-old male ambushed the 17-year-old pregnant girl, beating her with the assistance of four other women, according to a report in the Star Ledger.

In his ruling, Superior Court Judge Lawrence Jones weighed in that women who are already seeking a restraining order for themselves, as was the case with this 17-year-old mom-to-be, should not have to wait until giving birth before having another protective order put in place for the child.

Just to clarify, New Jersey does not legally recognize fetal rights. Judge Jones emphasized in his ruling that allowing restraining orders for unborn babies is solely a way to make life a little easier for pregnant victims of domestic violence; the order would not actually be enforceable until after the baby is born. As Judge Jones wrote: "When a pregnant victim of domestic violence obtains a restraining order against an abuser, and thereafter gives birth to a child, the last place the victim would want to go immediately after delivery is right back to the courthouse again."

On one level, this all makes perfect sense -- yes, please, by all means, save these new moms who are already dealing with so much additional stress. Still, as a family law attorney in New Jersey, I can't help but wonder what this ruling may mean down the road for the controversial concept of legal protections of an unborn fetus. For example, what does this mean for mothers who abuse drugs during pregnancy? We've seen many cases, in states including California, Florida, and Wyoming, where pregnant women have been brought up on charges of child abuse or child endangerment when drugs have been found in their systems. In all cases, charges were eventually dropped (or changed) because state appellate courts have almost uniformly not upheld the criminal prosecution for the effects of drug use on a fetus.

But could this be changing? As we've seen in New Jersey, courts over the years have ruled that children can sue parents later in life for damages suffered in the womb. For example, in cases involving a mother's drug abuse, an adult child could sue for damages in light of health and development problems clearly linked to drug exposure before birth. In cases of domestic violence, too, adult children can sue in cases where, for example, an assault led to preterm birth and birth complications that in turn led to disability and impairment.

If adult children can go to court over something that happened to them before they were born, then shouldn't it be the burden of our public safety and legal systems to keep these unborn fetuses safe from harm? And with women's reproductive rights continually scrutinized, does this derail our ability to talk reasonably about these kinds of issues? Time will tell, and we can only wait and see, but with this Ocean County ruling, we seem to be edging one step closer to a new conversation.