Ancient Medicine and Fetal Personhood
Last year Alabama passed HB494, a law that increased parental consent regulations for minors seeking abortions — in the case of minors who cannot obtain parental consent, the issue goes before the court. More famously, the new law allows the court to assign a public defender — a guardian ad litem — to represent the interests of the fetus.
The law was swiftly lampooned on the national stage: the Daily Show ran a segment called the Unborn Ultimatum in which correspondent Jessica Williams interviewed Julian McPhillips, one of Alabama’s fetal defenders. She deadpans, “You get a call from a fetus seeking legal representation, then what happens?” Amid peals of laughter, McPhillips explains that, of course, he cannot communicate with his client while it is housed in someone else’s womb. He chastises Williams for her theater of the absurd.
We may chuckle at Williams’ ridicule of HB494, but the philosophy behind the bill is serious. It asserts that fetuses are persons, equal to children in the eyes of the law. Furthermore, it literally pits fetuses against women in a battle for legal rights.
In the modern debate over abortion, or more broadly, over the nature of the maternal/fetal relationship, the battleground for pro-life and pro-choice activists is fetal personhood and fetal viability. That is, pro-life groups claim abortion is murder based on the notion that a fetus is a person while pro-choice groups stake the right to abortion on the notion that a fetus is not a person, at least up until a (politically and scientifically contested) point of viability. Even when pro-choice activists think the personhood of the fetus is irrelevant, they find themselves debating the issue.
But why should we take for granted that the personhood of the fetus is the primary point of contention? As a classicist and medical historian, I have examined the conceptual categories of “mother” and “fetus” in the ancient world. In Greece and Rome the fetus was not a person, but, nonetheless, the mother was seen as being in an antagonistic relationship with it and abortion was censured. For the Greeks and Romans, something besides fetal personhood underlay narratives of fetal rights and maternal liability.
According to some Greco-Roman reproductive philosophies, the mother constituted little more than a passive receptacle for male sperm. At best, she contributed constructive matter (menstrual blood) to conception, while the father contributed the generative matter (semen) (Aristotle, On the Generation of Animals 729a11). Aristotle (4th century BCE) compares the process to cheese-making: the male semen forms an embryo out of the female menstrual blood just as rennet forms cheese out of milk.
Similes of woman as earth abounded in Greco-Roman medical literature. Soranus, author of a gynecological text in the second century CE, explains fertility with an analogy of a farmer sowing seeds (Gynecology 1.36):
Just as every season is not propitious for sowing extraneous seed upon the land for the purpose of bring forth fruit, so in humans too not every time is suitable for conception of the seed discharged during intercourse.
Once the woman was visualized as a plot of fertile farmland, a ready congruency was available between “fetus” and “plant.” Indeed, physicians and philosophers in the second century CE, contemplating the ontological nature of the fetus, decided that it was actually most similar to a plant. Galen, a prolific physician/philosopher from the second century CE, describes how blood vessels spread out from the developing fetal liver like the branches of a tree from its trunk (On Fetal Formation 661 and 668); he suggests that an inquiry be made into the development and needs of plants in order to better understand the development of the fetus (On Fetal Formation 666). The second century Neoplatonist Porphyry corroborated this view, arguing that in utero, the fetus has a plant-like soul (To Gaurus on How Embryos are Ensouled). These philosophers allowed that a fetus was a living thing, but not a person.
Fetal rights in the ancient world instead centered around three concepts: 1) paternal interest, 2) civic interest, and 3) fetal potentiality. Paternal interest refers to the Roman man’s right to his future offspring, while civic interest indicates the state’s right to a future citizen; both ideologies were codified in Roman law.
Legally, the Roman fetus was considered to be a person only insofar as it stood to be its father’s heir. Ontologically, it was understood as “part of the woman or her insides” (Ulpian, Digest of Justian, 25.4.1.1, translation by Watson 2009). But at birth, the infant came under the legal control of its father because of the ius vitae necisque, the “right of life and death” that a Roman father had over his children. The father therefore also had legal rights to the unborn fetus, even to the detriment of the pregnant woman.
In a passage from the Digest of Justinian (sixth century CE, though in reference to earlier practice), the jurist Tryphoninus explains the Roman prohibition on abortion by referring to a passage from Cicero (66 BC) in which a woman who obtains an abortion “destroys the hope of the father, the memory of his name, the supply of his race, the heir of his family, a citizen intended for the use of the Republic” (Tryphoninus, Digest of Justinian, 48.19.39, translation by Watson 2009; Cicero, Pro Cluententio 32). The woman found to have procured an abortion was sentenced to exile (Ulpian, Digest of Justinian, 48.8.8).
Roman literary writers portrayed abortion as the practice of vain and adulterous women. In his philosophical treatise, On the Consolation to his Mother Helvia, Seneca (first century CE) praises his mother for her many virtues, including that she never “tried to conceal [her] pregnancy as if an unseemly burden, nor…ever crushed the hope of children that were being nurtured in [her] body” (De Consolatione ad Helviam Matrem 16.3). By his estimation, elite women viewed pregnancy as an unseemly blight on their physical beauty. Similarly, Aulus Gellius (second century CE) reports a speech of the philosopher Favorinus condemning women “who strive by evil devices to cause abortion of the fetus which they have conceived, in order that their beauty may not be spoiled by the labor of parturition” (Attic Nights 12.1.8) In Tacitus’ Annals(first century CE) Octavia is described as having procured an abortion to conceal an affair (14.63). The second-century CE satirist Juvenal cautions, in an infamously anti-woman poem, that abortions often indicate the adultery they conceal (2.6.595–97).
These censures of abortion rest not, as they do today, on the notion that a fetus is a person, but on the notion that a fetus belongs to its father and to the state. They are the product of a culture in which women were seen as tenuously connected to their fetuses and in which women had few legal and political rights. Women in ancient Rome could not vote, hold public office, or even exert legal control over their own children. Those who sought abortions were subject to moralizing rebuke.
The third basis for fetal rights in the ancient world, the notion of fetal potentiality, refers to a philosophical belief in the fetus’ potential (though not yet realized) personhood. The earliest expressions of potentiality take the form of a gradualist view of fetal development — starting from conception, the fetus is seen as moving through successive stages of living, gradually taking on more and more human-like characteristics. Throughout and as a consequence of this gradual development, the fetus comes to be seen as having the potential for life, the potential for developing an animal-like (as opposed to a plant-like) soul, and ultimately the potential of being a person — even if it is not viewed as such during every stage of the process.
The fetal potentiality principle is articulated succinctly by the unknown author of the second century treatise, Whether What is Carried in the Womb is a Living Being (165, translation by Kapparis 2002) :
…someone would not be speaking truthfully if he said that the sperm deposited into women is not a living thing. For this (sperm) is already a living thing potentially, and it will become so functionally when it comes out of the womb…
Fetal potentiality underlies many of the philosophical narratives of maternal/fetal antagonism in the Greco-Roman world. The pregnant woman was often seen as being in conflict with her fetus and its potential personhood. She was deemed liable for whatever happened to her fetus due to any poor choice in diet or physical regimen, or mental (dis)composure. Hippocrates summarizes the philosophy (Nature of the Child 11):
The nourishment and growth of children comes from whatever goes from the mother into the womb; and whatever health or disease the mother has, the child has this also. It is just as things growing in the earth are nourished from the earth.
Similarly, Soranus cautions (Gynecology 1.45):
Just as no poor land brings seeds and plants to perfection, but through its own badness even destroys the virtues of the plants and seeds, so the female bodies which are in an abnormal state do not lay hold of the seed injected into them, but by their own badness compel the latter also to sicken or even to perish.
The author of Whether What is Carried in the Womb is a Living Being speaks of fetuses dying in utero because they refused to eat the repugnant food ingested by their mothers (this philosophy relies on an ancient notion of fetuses consuming nutrients by mouth, as well as through the umbilical cord) (170). Pliny the Elder, author of one of the earliest encyclopedic texts in the first century CE, warns that women who eat too much salty food produce offspring with no fingernails.
Beyond diet and physical regimen, the ancient Greeks and Romans thought that a woman’s external perceptions or internal recollections at the time of conception had an effect on the fetus, a concept known as ideoplasty. The mother’s imagings were thought to impact both the physical appearance and the soul of the fetus. Famously, in Heliodorus’ 3rd/4th century Greek novel, the Aethiopica, the dark-skinned Egyptian queen gives birth to a pale skinned daughter because she happened to be looking at a picture of a pale-skinned Andromeda when she conceived (4.119). Soranus cautions that a woman should not engage in procreative intercourse after eating rich food and drinking alcohol, because then the deranged state of her mind and soul (psyche) will negatively affect the soul of the fetus (Gynecology 1.39).
Part of the complicated legacy of Greco-Roman gynecological theories is these diet and regiment prescriptions. Today, recommendations for pregnant women proliferate ad absurdum. Some internet humorists have started to capitalize on the age-old practice of giving unsolicited advice to pregnant women. Buzzfeed has a comic video featuring monitions such as, “you shouldn’t be eating lemons…they make your baby hairy — this one came out looking like a Wookiee!” and “don’t lift your arms too high over your head — the umbilical cord will wrap around the baby’s head and strangle it.”
But there is a darker side to this cultural impulse to advise and even control the behavior of the pregnant woman. In the modern United States, the Greco-Roman notion of potentiality has morphed, by way of long and complicated developments in Catholic theology, into an understanding of the fetus as a person. This is evident in Alabama HB494 and, more sinisterly, in prenatal harm cases.
Currently, 38 states have fetal homicide laws, which allow for the double prosecution of the assailant of a pregnant woman. However, some of these laws are also used to prosecute pregnant women who engage in behaviors that are deemed risky or potentially harmful for the developing fetus. Last July in Wisconsin, Tamara Loertscher went to the hospital to confirm her suspicion that she was pregnant. She disclosed to hospital staff that prior to discovering her pregnancy, she had been self-medicating her thyroid condition with marijuana and methamphetamine. Loertscher was thrown in jail for 17 days (including stints of solitary confinement), denied prenatal care and medication for her hypothyroidism, and registered for life as a child abuser.
In 2006, in Mississippi, Rennie Gibbs was facing life in prison for a stillbirth at 36 weeks. When she lost her baby, “traces of a cocaine by-product” were found in her system. Based on these traces, a grand jury indicted Gibbs for “depraved heart murder,” which carries a possible life sentence. Gibbs finally went to trial last year, where the judge ruled that the state had “no legitimate murder case” against Gibbs. She lost eight years of her life to the process.
Gibbs is just one of many women prosectued for fetal harm in recent years. In 2012, the New York Times profiled “bad mothers” who have been criminalized for endangering fetuses. Some, such as Amanda Kimbrough, who tested positive for methamphetamine when her infant was born prematurely, are charged with chemical endangerment of a child. The reasoning is that use of illegal drugs might have caused the miscarriages, premature births, and stillbirths. Even in cases where the child survives, such as with Tamara Loertscher, the woman is prosecuted for causing her fetus potential harm.
But, when the connections between drug use and pregnancy have been studied, the concern has sometimes revealed itself to be out of proportion. In the 1980s, the media, spurred on by physicians’ concerns, was obsessed with a new generation of depraved, “sub-human” spawn being created by cocaine-using mothers — “crack babies.” It was thought that “crack babies” were born premature, underdeveloped, and with a congenital addiction to cocaine. However, it turns out that these assumptions were based on shoddy science with limited test subjects. Cocaine use has been shown to be detrimental to fetuses in some ways, but not all the ones that were suggested, and not to the degree that was feared. We certainly don’t have an adult generation of formerly crack-addled fetuses! Rather than prosecuting women who use drugs while pregnant, what really helps birth outcomes is working with women to root out the causes of drug use — addiction, poverty, abuse, and partners who use drugs.
Modern right-to-life activists portray women as sources of harm to unborn children, based on the notion that a fetus is a rights-endowed person. They view abortion as murder and miscarriage from drug or alcohol use as negligent manslaughter. It may seem to pro-choice activists that the way to combat this view is to deny fetal personhood, at least up to a mutually agreed upon point of viability. This is the philosophy that underlies Roe v. Wade, the landmark 1973 abortion-rights Supreme Court case. As a result of the case, a woman, in consultation with her physician, is allowed the privacy to choose an abortion up until the point of fetal viability.
However, as we can perhaps learn from the ancient world, denying fetal personhood is not enough to convince people that a woman should have the right to an abortion. Even in a time and place when fetal personhood was questioned, abortion was outlawed and narratives of maternal/fetal antagonism proliferated.
As Planned Parenthood fights for women’s health care rights in congress, defending itself against accusations that they improperly disposed of fetal tissue, I think that the national discourse on abortion cedes too much ground to the fetal personhood premise. Despite its lack of a fetal personhood narrative, the ancient Greco-Roman world was no friendlier to reproductive rights than anti-abortion groups today. It seems to me that fetal personhood is a straw man, concealing a long history of regulating and controlling women’s reproduction in the name of the fetus.
Tara Mulder received her PhD in Classics from Brown University in 2015. She is a visiting assistant professor at Wheaton College in Norton, MA and the managing editor of Eidolon. View more of her work here.
