Mary Ziegler’s latest book, Personhood: The New Civil War over Reproduction, offers a gripping window into the legal push to define the unborn as “persons” starting at the earliest stirrings of human life, when sperm fertilizes an egg. Ziegler traces the evolution of a powerful social movement that seeks to confer constitutional rights to nascent human beings, from the moment of conception. This complex movement has not only reshaped American politics and law, Ziegler makes clear. She also shows how, after the fall of Roe, that movement struggle promises to remake wide swaths of criminal justice and civil liability in the United States. This review of her book seeks to locate a central contradiction in the legal landscape of post-Roe America. For women who seek to end their pregnancy, many states ban abortion by reference to the ideal that unborn life should be treated as legal persons, with protected rights of their own. Yet those very same states deny this status of personhood to human embryos and fetuses in a similar context: when those entities are lost to the negligence of IVF clinics or misconduct by others deprive aspiring parents of the would-be children they had desperately wanted. In this private law of reproductive loss, most states still treat reproductive loss as more like property damage or emotional distress than the loss of a child, that is, a rights-bearing person.

When it comes to abortion, embryos and fetuses are treated as persons. With reproductive loss, they’re classified as closer to things. This personhood double standard presents a puzzle: Why does the law recognize unborn personhood in some circumstances or domains but not others? And how could the state claim a stronger interest in protecting prenatal life (as in abortion bans) than the would-be parents who created it (as when fertility freezers fail)? This review seeks to answer these questions. It calls for crafting a legal doctrine that is more conceptually principled and doctrinally coherent, one that gives voice to the profound value of nascent human life and to the complicated character of our lived realities with the unborn.

A submission to the UC Davis Law Review Online's Volume 59 Symposium, The Past, Present, and Future of Fetal Personhood: An Online Symposium in Response to Personhood by Mary Ziegler.