Peterson guilty: but once, not twice

The conviction of Scott Peterson on a separate murder charge for killing the fetus carried by his wife, Laci, raises questions about the moral and legal status of fetuses. Many people, the jury included, recognize that killing his wife in late pregnancy was more heinous than killing his wife alone. Yet many are also uncomfortable with granting full legal personhood to a fetus still in the womb.

There are social and legal responses to such crimes that respect both sentiments: An anthropologically informed model of personhood affords appropriate social recognition for the pregnancy loss; while a woman-centered - rather than fetal-centered - legal approach acknowledges and supports society's interest in protecting pregnant women.

One of the most fundamental ways that cultures vary from one another is in their models of what it is, or takes, to be a person. In some cultures, personhood is understood to come into being at a specific moment, while in others, personhood is understood to come about gradually, over a period of time, sometimes occurring over the course of a lifetime and even beyond. Because the US is generally understood to be of the first type, the abortion debate hinges on which moment is the critical one - conception or 24 weeks or birth.

But Americans actually use both models. A pregnant woman sometimes chooses to develop a relationship with an embryo/fetus; other times she does not. If she decides to develop this relationship, she begins the work of constructing a person. This involves things like changing certain personal habits, telling others, seeking medical care, fantasizing what the child will be like and how it will fit into and change the family unit, naming it, shopping for it, preparing a space for it at home and in life.

The process of constructing a person is rarely undertaken alone; relatives, friends, co-workers, healthcare providers, and even strangers who pat tummies and ask when the baby is due or offer unsolicited advice, all engage in this process. Certain medical encounters accelerate the pace - prenatal visits at which one hears or sees a heartbeat or learns the sex typically amplify and accelerate the process of constructing a new person.

Other factors may slow, or even reverse, the process. For example, while waiting for the results of an amniocentesis or during a pregnancy following a miscarriage or stillbirth many women postpone "person-making" practices and limit their relationship with the fetus. There is not a one-to-one relationship between gestational age and development of personhood, but they're certainly linked. The longer a desired pregnancy lasts, the more opportunities there are for acknowledging personhood.

In the case of Laci Peterson, the construction of personhood was well advanced. The sex was known, Connor's name had been selected and a shower was planned and items on the gift registry at Babies R Us - including a bath, a swing, and port-a-crib - had already been purchased. The nursery was nearly ready. Clearly, the process of creating a new person had been actively engaged in by many individuals during this nearly completed pregnancy. Connor's death represents a significant loss to those who participated in this social process and eagerly awaited his birth. Such losses are heartbreaking, whether the result of murder or stillbirth (approximately 26,000 in America each year), and they deserve our recognition and support.

But there are many forms social recognition can take. Granting equal legal rights to an unborn baby is neither necessary nor appropriate. Regardless of the duration, intensity, or social breadth of personmaking, until birth, a "baby" is not a separate entity, not yet "an individual."

The murder of a pregnant woman is not two crimes but one particularly heinous crime - and sentencing should reflect this. We give harsher sentences for the murder of law enforcement officers in recognition of the essential social function they perform and the fact that in so doing they make themselves more vulnerable to violent, sometimes fatal, attack. Likewise, we should recognize the special status of pregnant women who also perform an essential social function. Data suggest that pregnancy makes them more vulnerable to such attacks.

A 2001 study published in the Journal of the American Medical Association shows that homicide is the most common cause of death among pregnant women in America. And several studies show that if a woman is pregnant she is between 35 percent and 50 percent more likely to be assaulted than women who are not pregnant. Beatings of pregnant women are more severe and more frequent, and pregnant women are much more likely to be hit or kicked in the stomach.

We need to recognize and support the grief of those whose wished-for pregnancies do not end in a live birth, whether or not their pregnancies end through violence. We should also acknowledge the special status and potentially fatal risk that pregnancy entails, and sentence criminals accordingly.

• Linda Layne, a cultural anthropologist, holds the Hale Chair in Humanities and Social Sciences at Rensselaer Polytechnic Institute. She is author of 'Motherhood Lost: A Feminist Account of Pregnancy Loss in America.'