In December of 2010, Bei Bei Shuai was pregnant, alone, and in despair: Her marriage had fallen apart, and her new boyfriend had broken his promise to leave his wife for her. In a desperate moment, the Indiana woman swallowed rat poison in an attempt to commit suicide. She survived; her fetus, delivered by caesarean section, did not. But instead of being sent home to receive mental health care, Shuai was charged with murder for attempting to kill the 8-month-old fetus, which enjoys its own separate protection under Indiana law. In August, she made a deal with prosecutors to plead guilty to criminal recklessness after spending more than a year in jail.
Shuai is one of hundreds of women who have found themselves caught in a gray area that appears to be widening in American law. Thanks to a patchwork of state court decisions and laws passed to protect pregnant women, punish abusers, promote public health, and discourage abortions, fetuses have steadily been gaining legal rights in American courts—rights that often conflict with those of the women who carry them. The shift has happened despite the failure, even in conservative states, of laws to establish “fetal personhood” outright.