Assigning a lawyer to a fetus isn’t a new practice—but now that it’s becoming law, it is a dangerous one.
Abortion politics aside, there’s nothing inherently wrong with having someone advocate for a child in court. The problem is, fetal lawyers are all too often put in a position that complicates or completely disregards the wishes of the mother.

Marlise Machado Muñoz, for instance, never wanted to be kept on life support in the event of an emergency. But that’s almost what happened to her because at the time of a brain clot that left her brain dead, Muñoz was 14 weeks pregnant. Though her family ultimately successfully advocated for her wishes, the whole thing led to one Texas lawmaker proposing a bill that would assign a lawyer to fetuses when their mother might be taken off life support.
Sadly, this isn’t a new strategy. With the broad nature of fetal protection laws some fetal lawyers are called even when the mother has no representation.
And when compounded with other strict abortion laws these fetal lawyer tactics can prove to be even more humiliating. In Alabama minors who want an abortion require parental consent unless they petition a court for a waiver to get a “judicial bypass.” But given an Alabama law passed last year lets a judge call a lawyer for the fetus, RH Reality Check writes that the whole thing can turn into an illogical practice that essentially puts the teen on trial:
The whole point of judicial bypass is to allow a minor to participate in confidential proceedings where a judge will ask her a bunch of questions to determine whether she’s mature enough to decide to get an abortion on her own. If the court determines that, no, this child is not mature enough to decide to terminate an unwanted pregnancy, then it will decide that the child is, apparently, mature enough to be a parent.
…Last year, though, Alabama took “illogical” to a whole other level. Legislators passed a law that allows the court to appoint a lawyer for the fetus, so that when the judge decides whether or not to waive the consent requirement for the child, the interests of the child’s fetus will be represented.
If you think it sounds like the weirdest landlord/tenant dispute you’ve ever heard of, you’re not too far off. And here’s the kicker: If the court decides to grant the minor permission to get an abortion without parental consent, the lawyer for the fetus may appeal the decision.
Those seeking an abortion in Alabama already have to wait the mandatory 48 hours after state-directed counseling to get an abortion. But Alabama also has one of the strictest abortion bans in the country, outlawing the practice (except in cases with adequate exceptions like sexual assault or incest) at only 20 weeks. If a court drags its feet on a minor’s judicial bypass hearing, let alone appeals the decision, the fetus’s lawyer could easily put a hold on the abortion until it was too late.
Obviously there are lawyer who won’t do that; many cases have the court similarly appoint a guardian ad litem to someone who is otherwise incapacitated or somehow unable to advocate for themselves in court. But it’s hard to see how a court-appointed lawyer for an entity without any sort predefined interests or guidance—aside from what the state wants—doesn’t present a risk for those who believe they’re acting in the best interests of parties involved.
“To me that’s saying that my family was not looking out for the best interest of Marlise and the fetus,” Muñoz’s mother, Lynne Machado, told The Dallas Morning News about Texas’s new bill. “We feel our actions and decisions were based on what was best for both of them.”
Hopefully the legislature will agree with them.