The FAQs: New Georgia Law Recognizes (Some) Unborn Children as Persons

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What just happened?

Last week the governor of Georgia signed into law the Living Infants Fairness and Equality (LIFE) Act (HB 481). “Georgia is a state that values life,” said Gov. Brian Kemp. “We stand up for those who are unable to speak for themselves.”

The act is similar to “fetal heartbeat” legislation passed in other states that bans abortions after the point where the heartbeat can be detected. But because the LIFE Act also expands the legal definition of “persons” the law also has broader ramifications that come from treating the unborn as protected citizens.

Who will now be considered “persons” under the new law?

Georgia law recognizes two classes of persons: natural and artificial. Artificial persons are corporations, which are created by law and are “subject to be changed, modified, or destroyed at the will of their creator.” Natural persons are any human beings including an unborn child with a detectable human heartbeat.

Under the new law “detectable human heartbeat” means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the heart within the gestational sac. “Unborn child” means a member of the species Homo sapiens at any stage of development who is carried in the womb.” (Note: For the purpose of this article, the term “unborn child” will be used an abbreviation of “unborn child with a detectable human heartbeat.”)

Can a woman be prosecuted under this law for having an abortion?

No. While the new law does not state that women are exempt from prosecution, other Georgia criminal statutes that explicitly apply to abortions and unborn children prohibit women from being prosecuted for terminating their own pregnancy.

As David French notes, in the case of Hillman v. State, the Court of Appeals of Georgia rejected the prosecution’s effort to imprison a woman who shot herself in the stomach to kill her unborn child. Interpreting the relevant statute the court said, “This statute is written in the third person, clearly indicating that at least two actors must be involved.” Accordingly, it “does not criminalize a pregnant woman’s actions in securing an abortion, regardless of the means utilized.”

Will unborn children be counted as part of the population?

Yes. According to the new law unborn children shall be included in population-based determinations.

Can the father of an unborn child be forced to pay child support?

Yes. However, the maximum amount of support that the court may impose on the father before the child is born cannot exceed the amount of direct medical and pregnancy related expenses of the mother of the unborn child.

Will an unborn child be eligible to be included as a dependent on the state tax returns?

Yes. The new law clarifies that if they meet the other qualifications for the term “dependent” under the Internal Revenue Code of 1986, any unborn child with a detectable human heartbeat shall qualify as a dependent minor.

Will an unborn child be eligible for certain public benefits even if the mother was an undocumented immigrant?

Yes. As Georgia’s Office of Legislative Council clarifies, the law would allow—and perhaps require—the state to begin paying some public benefits to an unborn child and that it would “be impossible to deny that ancillary benefit to the illegal immigrant parents of such a child.”

Does the law have any exception for when abortion is allowed?

The law does not prohibit an abortion prior to the age at which a heartbeat can be detected (i.e., prior to about six weeks’ gestation). The law allows an exception in cases of rape or incest if a woman files a police report and the pregnancy is less than 20 weeks. It also allows exceptions when an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman or when in reasonable medical judgment, an unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.

Is the law already in effect?

No, the law is set to take effect on January 1, 2020. The reason for the delay is because when a new law in Georgia includes a tax exemptions or deductions (see question above), it must start on January 1 of the following year.

Is the new law constitutional?

Under current legal precedents related to abortion, the Georgia law is likely to be deemed unconstitutional by federal courts (four other similar fetal heartbeat laws have already been blocked by the courts). State legislators recognize this fact, of course, and are implementing such laws in the hope that it will force the Supreme Court to re-examine—and possibly overturn—such cases as Roe v. Wade and Doe v. Bolton.

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