Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates

Abstract

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the most salient ways fetal personhood laws could upend longstanding rules concerning property ownership and taxpayers’ determination of their fiscal obligations to the government. Unless carefully circumscribed, fetal personhood laws will disrupt the orderly transmission of property at death, the ability to administer a trust, and any durational limits on trusts. Third, the Article argues, state lawmakers should explicitly limit the scope of fetal personhood laws. Somewhat counterintuitively, both those with anti-abortion views and those who wish to secure access to the procedure share an interest in doing so.

For symbolic-political reasons, however, it is unlikely that lawmakers in anti-abortion states will place voluntary boundaries on the applicability of fetal personhood statutes. Therefore, the Article proposes rules of construction that judges should adopt in jurisdictions that have adopted fetal personhood laws. These include presumptions that a zygote-embryo-fetus is not the beneficiary of an estate or trust, disregarding in vitro embryos for purposes of the rule against perpetuities, and fixing the generational assignment of a zygote-embryo-fetus for generation-skipping transfer tax purposes at one generation below that of the intended parents. The Supreme Court is not likely to reverse the Dobbs decision for many decades, if at all. Therefore, making fetal personhood statutes inapplicable to matters of taxation (other than the state income tax deduction for dependents or child tax credit), trusts, and estates represents a pragmatic approach that simultaneously permits states to signal their anti-abortion commitments while limiting disruptions to the legal system and the spread of encroachments on the bodily autonomy of those with the capacity to become pregnant.

Keywords: Dobbs, abortion, fetal personhood, tax, trusts, estates, inheritance, succession, pragmatic

JEL Classification: K1, K10, K11, K34, K36, K30