How confusing fetal-personhood laws in America affect hospitals

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Since the Supreme Court dissolved the federal right to abortion in June 2022, those who believe that life begins at conception have won big across America. In Georgia, where a six-week abortion ban swiftly snapped into effect, respect for the unborn has led to some strange policies. A pregnant woman can now declare a fetus with a detectable heartbeat a dependant on her state tax form, drive alone in the carpool lane on the motorway and demand child-support payments from the father of her unborn baby.

Another result has been confusion about when and how doctors should treat periviable babies. Periviability is the period of a pregnancy between 21 and 24 weeks. Babies born at that point have a 10-40% chance of living if given intensive care (many factors complicate the calculation—for example, girls mature a week ahead of boys). Those who make it tend to develop serious disabilities. The standard of care is for neonatologists to work with the parents of periviable babies to decide whether to resuscitate or let them die.

Tucked into Georgia’s Living Infants Fairness and Equality (LIFE) Act is a provision about what happens in the very unlikely event that a baby survives a legal abortion. In Georgia the six-week ban has exceptions in cases where a mother’s life is at risk, for rape and incest, or if the fetus is not expected to survive the pregnancy. “If the child is capable of sustained life”, the law reads, “medical aid then available shall be rendered”. Doctors who disobey can be prosecuted. The general counsel at a big Georgia hospital has declared that the law could apply not just to aborted fetuses but to other pre-term babies too.

Under the new hospital rule, which has already gone into effect, neonatologists must resuscitate periviable babies even against the will of the parents. That could look something like this: a woman gives birth after five months of pregnancy. The doctor says her baby boy is likely to die, even if they do everything they can. He is roughly the size of a sweet potato and so fragile that touching him with too much pressure can tear his skin. Bleeding will leave him with brain damage if he survives—he could also develop cerebral palsy and vision and hearing problems. The hospital may not even have tubes small enough to intubate him to help him breathe. The doctor tells her she has no choice but to try to keep the baby alive, and that she will be billed for the cost.

A study published in the Journal of Perinatology found that a six-month stay for a 24-week-old costs on average $604,000, equivalent to over $3,300 per day. Even so, doctors at the Georgia hospital must now comply with the policy or risk losing their medical licence. April Dworetz, a neonatologist at Emory University and bioethicist at the Georgia branch of the American Academy of Pediatrics, says that if her hospital adopted the policy she would resign, after 40 years in the field. “Forcing me to do something that would not be in the best interests of the patient or the parents in my ethical, moral understanding of the situation—I just couldn’t do it,” she says.

This is just one lawyer’s reading of the law. Other lawyers disagree with it. One way to get clarity would be for the state to actually prosecute a neonatologist for failing to resuscitate periviable babies under the LIFE Act, or to obtain an opinion from the state’s attorney-general’s office. Asking for one comes with its own risks though, says Allison Whelan, a law professor at Georgia State University. If the state’s top lawyer decides that it does apply, even if he had not previously considered it, every hospital in Georgia would have to adhere to that interpretation.

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