RESEARCH ON THE FETUS - National Institutes of Health

parents retain control over a viable infant. Certain states, however, have
written into their abortion statutes some form of parental forfeiture of rights
(Louisiana, Missouri, Montana, Kentucky, Indiana, South Dakota).
Dean Wilson suggests that, at least with respect to therapeutic research,
the power of consent should not be removed from a mother and father because they
are minors. Also, he expresses the belief that only therapeutic research should
be conducted on the viable infant.
The Fetus In Utero. Although the fetus does not achieve the interests of
a full person until live birth, it is not entirely without protection while still
in utero. Professor Capron points out that the criminal law in various states,
with expansions under civil law, recognizes interests of the fetus in utero in
two ways of possible relevance to research. First, there are some recent statutes
seeking to safeguard the fetus in utero against life-threatening intentional
injury, and some older statutes that depart from the common law by prohibiting
"feticide." It is unlikely that the older statutes would apply to research on
the fetus, since the element of intent to do harm would be missing. All of these
statutes must, of course, be examined in the light of Roe v . Wade .
Second, interests of the fetus in utero are recognized in the criminal
law by protecting the fetus against injuries which cause its death or impairment
after it is born alive. The effect of such protection is to put pressure on
those involved to assure that the abortion is "effective." Thus, Professor
Capron suggests, the law may be recognizing, not fetal interests, but the interests
of human beings, after birth, not to suffer because of culpable acts of
other persons.
In some jurisdictions, Professor Capron finds that the civil law recognizes
a broader fetal interest in protection against harm in utero. The courts in at
least 21 states have recognized a cause of action for injuries to a viable fetus
that lead to its stillbirth. Once the fetus is viable, Professor Capron states,
the decision in Roe v . Wade does not appear to be an absolute bar to holding that
the fetus and its parents have an interest in its potentiality for life.
If the fetus is in fact born alive, the protection under civil law is even
broader, with no importance being attached to the question whether the injury
27