Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to protect women from prosecution for the injury or death of their own fetus. However, in recent years, despite these explicit constraints, cases have emerged in California that do just this: prosecute women for harm to their own fetus. So why, if states are clearly exempting pregnant women from prosecution for their own injured fetuses, are such prosecutions still being undertaken? This Comment suggests that the problem lies in the fetal personhood theory now underlying these FPLs. FPLs not only provide protective rights to fetuses, but in doing so, define the fetus as a legal person. Under this framework, it becomes impossible not to prosecute the mother for harm because she and the fetus are separate legal persons with separate legal rights and protections. However, there is an alternative. Drawing from feminist care theory and distributive justice, this Comment proposes that rather than consider the fetus and the mother as separate legal entities, the fetus and the mother should be seen as one fetal-maternal entity with rights flowing through the mother. This Comment refers to this theory as the Fetal Maternal Identity Theory (FMIT). Rather than seeing the mother and fetus as independent entities, FMIT correctly recognizes the unique relationality between the fetus and its mother and reconceives of rights as incumbent upon this relationship. Because the fetus is necessarily dependent upon the mother, all of its rights, like its identity and very existence, are afforded to it through and in relation to its mother. This theory solves several problems. First, it helps to define the problem facing states that seek not to prosecute women for harm to their fetuses but find it impossible to do so. Second, it provides the foundation for a new theory of relationality that better appreciates the complex condition of pregnancy and protects women from harm and unjust prosecution. Ultimately, beyond its function, FMIT better apprehends the conditions of pregnancy and provides a well-grounded framework for redistributing responsibility.

胎儿保护法 (FPL) 是对“针对胎儿”犯下的任何数量的犯罪（包括杀人罪）进行定义和处罚的法律。以前的文献表明，FPL 需要明确说明该立法的预期目标是谁。具体而言，有关对孕妇使用 FPL 与自己的怀孕有关的评论表明，各州在其 FPL 中包含明确表示法律不应适用于伤害自己胎儿的妇女的语言。事实上，加利福尼亚等一些州已采取措施限制 FPL 的应用，以保护妇女免受因胎儿受伤或死亡而受到起诉。然而，近年来，尽管有这些明确的限制，加利福尼亚州还是出现了这样的案例：起诉伤害自己胎儿的妇女。那么，如果各州明确免除孕妇因自己受伤的胎儿而受到起诉，为什么还要进行此类起诉呢？该评论表明问题在于现在作为这些 FPL 基础的胎儿人格理论。FPL 不仅为胎儿提供保护权利，而且在这样做的过程中，将胎儿定义为法人。在这个框架下，不起诉母亲的伤害是不可能的，因为她和胎儿是独立的法人，拥有不同的法律权利和保护。但是，还有另一种选择。本评论借鉴女权主义照料理论和分配正义，提出不应将胎儿和母亲视为独立的法律实体，而应将胎儿和母亲视为一个胎儿-母亲实体，其权利流经母亲。该评论将此理论称为胎儿母亲身份理论（FMIT）。FMIT 没有将母亲和胎儿视为独立的实体，而是正确地认识到胎儿与其母亲之间的独特关系，并将权利重新视为这种关系的义务。因为胎儿必然依赖于母亲，所以它的所有权利，比如它的身份和存在本身，都是通过它的母亲并与它的母亲相关的。这个理论解决了几个问题。首先，它有助于确定那些寻求不起诉伤害胎儿但发现不可能这样做的国家所面临的问题。其次，它为一种新的关系理论奠定了基础，该理论可以更好地理解怀孕的复杂状况并保护妇女免受伤害和不公正的起诉。最终，