St. Mary's Law Journal


In Texas, contrary interpretations, whether a fetus is a person or non-person, create unpredictable and irreconcilable outcomes. The author contrasts the differences found in Texas law regarding the rights of unborn children in the areas of property, family, criminal, and tort law. At conception, a fetus enjoys property rights. However, under the auspices of family law, a mother may not collect child support until birth but may seek contribution for prenatal care prior to birth. Criminal protection of a fetus is unavailable in Texas unless the fetus is born alive. If criminal activity results in still birth or fetal destruction, no legal remedy exits for parents. Further, under tort law, parents have no cause of action against individuals causing the wrongful death of a fetus. Conversely, an unborn fetus may have a tort cause of action against an individual causing the wrongful death of a parent. Texas is part of the majority of jurisdictions recognizing property rights of fetuses. On the other hand, Texas is part of the minority of states by not recognizing criminal and tort rights in favor of an unborn child. The Texas legislature has been slow to modernize statutes to conform with the majority trend. Additionally, the Texas judiciary has been unwilling to define the legal point of viability. The avenues, legislative or judicial, for modernizing approaches to fetal rights are available but have remained dormant in Texas. The lack of congruity provides parents a remedy in most jurisdictions for fetal destruction when none is available in Texas unless the child survives. By modernizing fetal rights in line with majority jurisdictions regarding criminal and tortious activities, Texas would provide consistency and predictability lacking in these areas of law for unborn children.


St. Mary's University School of Law