The 1973 Supreme Court case Roe v. Wade was a significant event in the story of fetal personhood—the story of whether embryos and fetuses are legal persons. Roe legalized abortion care in the United States (US). However, the story of fetal personhood began long before the 1970s. People have been talking about embryos, fetuses, and their status in science, the law, and society for centuries. I studied the history of fetal personhood in the United States, tracing its origins from Ancient Rome and Medieval England to its first appearance in a US courtroom in 1884 and then to the Supreme Court’s decision in 1973.

In Davis v. Davis (1992), the Supreme Court of Tennessee decided a dispute over cryopreserved preembryos in favor of Junior Lewis Davis, who sought to have the preembryos destroyed over the objections of his former wife, Mary Sue Davis. The decision in Davis, although not binding in other states, suggested a framework for resolving similar disputes in the US. That framework established that courts should follow the wishes of those who contribute their sperm and egg cells, or gamete providers, to create preembryos. In the event of a dispute, courts should enforce any prior agreement between the gamete providers and in the absence of such an agreement, the court should weigh the interests of the parties, ordinarily ruling in favor of the party who wishes to avoid procreation.

In the case York v. Jones (1989), the United States District Court for the Eastern District of Virginia was one of the first US courts to address a dispute over a cryopreserved preembryo. Steven York and Risa Adler-York (the Yorks), a married couple, provided their gametes to doctors who created the preembryo, which the court referred to as a pre-zygote, as part of an in vitro fertilization (IVF) program at the Howard and Georgeanna Jones Institute for Reproductive Medicine (Jones Institute) in Norfolk, Virginia. The couple sued when the doctors at the Jones Institute refused to release the preembryo to the Yorks for use at a different IVF clinic. The Virginia district court denied the Jones Institute's attempt to have the York v. Jones case dismissed, and instead upheld the Yorks' right to move forward with their lawsuit. The York v. Jones decision had important implications for future disputes over cryopreserved preembryos because it treated the Yorks' cryopreserved preembryo as legal property over which the Yorks retained decision-making authority.

In 2014, Big Belli, a media and social networking brand, released a documentary called 40 Weeks online. The documentary, directed by Christopher Henze, followed multiple women during their pregnancies. The film predominantly features three women, though it includes the stories of many. Throughout the film, women detail their accounts of the physical and emotional changes that occur during pregnancy. 40 Weeks provides viewers with information about different aspects of pregnancy including the importance of nutrition and hydration, knowledge about safe medications, and the possible complications that can affect a pregnant woman and her fetus.

Mary Ware Dennett, an activist in the US for birth control and sex education in the early twentieth century, wrote an educational pamphlet in 1915 called “The Sex Side of Life, and it was published in 1919. The pamphlet defined the functions of the sex organs, emphasized the role of love and pleasure in sex, and described other sexual processes of the body not usually discussed openly. In the early twentieth century in the US, individuals did not have wide access to sex education due to the limitations enforced by the Comstock Act, which prohibited the distribution and discussion of topics that were considered obscene. In 1929, the US tried Dennett for mailing her pamphlet as a violation of the Comstock Act, sending obscene material through the United States Postal Service. Dennett’s pamphlet, Tthe “Sex Side of Life,” and her subsequent trial, United States v. Dennett, contributed to a national discussion about sex education and human reproduction and led to the revision of reproduction- related obscenity laws.

The Dalkon Shield was an intrauterine contraceptive device (IUD) that women used in the early 1970s and 1980s. Produced by the A.H. Robins Company in the US, the Dalkon Shield was a contraceptive device placed directly into a woman’s uterus that was supposed to prevent the development of a fetus in the uterus. In the 1980s, researchers uncovered an array of severe birth defects and injuries caused by the Dalkon shield, including pelvic infection, infertility, and death of the user. Eventually the A.H. Robins Company took the shield off the market, and the US Food and Drug Administration banned the device. Some users of the Dalkon shield sued the producers of the device, winning millions of dollars in compensation and punitive damages. After the dangers of the Dalkon Shield became public through those lawsuits, the popularity of intrauterine devices decreased significantly in the US.

The Whelan Method of Sex Selection is a method for increasing a couple’s probability of conceiving an infant of the desired sex through timing intercourse. Elizabeth Whelan, a public health researcher, suggested that couples only have intercourse at specific times during the woman’s menstrual cycle based on whether they wanted a female or male infant. Whelan published her method in her book, Boy or Girl, in 1977. During the mid-to-late twentieth century, researchers offered other methods of timing intercourse for sex selection, but their results were based on studies of artificial insemination, rather than naturally occurring pregnancies. Whelan claimed her method was supported by natural insemination studies and that it worked for couples trying to conceive an infant of a particular sex.

In 2015, the British Broadcasting Corporation (BBC) partnered with The Open University to produce the three-part documentary series, Countdown to Life: The Extraordinary Making of You. Michael Mosley, a British television producer and journalist, hosts the documentary. Along with narrating animated scenes of a growing fetus in the womb, Mosley meets with individuals around the world who experienced mutations that can arise in the womb. Introduced over the course of the three episodes, several people share their personal stories of how their bodies did not develop correctly prior to birth. Throughout the documentary, animations of fetal development and individuals’ stories about their own birth defects transition back and forth to show how a fetus develops. Countdown to Life: The Extraordinary Making of You informed the public of what happens to the fetus at the point of conception to the point of birth at forty weeks.

In the book Your Baby’s Sex: Now You Can Choose, David Michael Rorvik and Landrum Brewer Shettles describe methods that couples can use prior to and during conception that will increase the chances of producing a child of their desired sex. Rorvik, a science writer, and Shettles, an obstetrics and gynecology researcher and physician, co-wrote the book. Shettles developed the methods detailed in the book during the 1960s. Although the authors claim a high success rate, some researchers have contested the validity of the methods proposed in Your Baby’s Sex: Now You Can Choose. Despite contradicting evidence for the effectiveness of the methods, the book itself has remained popular throughout its forty consecutive years in print. Since its original publication, Your Baby’s Sex: Now You Can Choose has reached a large audience, with over 1.5 million copies of the book sold worldwide, while adding to the controversy about the ethics of sex selection research.

Edmund Beecher Wilson in the US published An Atlas of Fertilization and Karyokinesis of the Ovum (hereafter called An Atlas) in 1895. The book presents photographs by photographer Edward Leaming that capture stages of fertilization, the fusion of sperm and egg and early development of sea urchin (Toxopneustes variegatus) ova, or egg cell. Prior to An Atlas, no one photographed of eggcell division in clear detail. Wilson obtained high quality images of egg cells by cutting the cells into thin sections and preserving them throughout different stages of development. An Atlas helped Wilson develop methods to present key stages of fertilization and development, which he later used in his textbook The Cell in Development and Inheritance, first published in 1896. Furthermore, An Atlas was the first publication to present accurate images of the fertilized egg cell during early stages of development.