Accounting for Fetal Personhood: Confronting the Implications of Fetal Personhood on Vital Statistics Law

In February 2024, in LePage v. Center for Reproductive Medicine, the Alabama Supreme Court held that embryos created through in-vitro fertilization (IVF) were legal persons. The national conversation about this ruling focused on the implications for IVF treatment. The impact of fetal personhood on the realm of vital records law has, to date, gone unnoticed. Vital records laws in the United States mandate the registration and collection of data for legislatively determined vital events. Vital records law influenced by fetal personhood, as well as broader trends to criminalize pregnancy, has profound and troubling implications for individuals experiencing spontaneous abortion (miscarriage) or induced abortion. With full fetal personhood, individuals experiencing very early spontaneous abortion, who may never have even known they were pregnant, could violate vital record regulations if they do not report the spontaneous abortion. These laws and ruling, therefore, fundamentally impact the reproductive rights and privacy expectations of individuals across the United States. Vital records regulations fall under the jurisdiction of vital records registration area, typically states, and are not subject to federal law. This article contextualizes vital records law and highlights the immense variation across jurisdictions. It examines how fetal personhood ideologies and criminalization can impact vital records requirements to report and document information about reproduction. This article focuses on three prime concerns: data privacy, gestational age, and reporting requirements. The problem presented by vital records and reproduction becomes more complex because data is also important for public health. This article underscores the necessity of a balanced approach to vital records legislation—one that maintains public health benefits without compromising the privacy or rights of individuals or criminalizing pregnancy.