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Court rejects attempt to get pregnant woman out of jail because of the rights of her fetus

Questions about the rights of a fetus are a developing area of law, following the Supreme Court's abortion ruling.
/ Source: TODAY

A Florida court has denied a petition to release a pregnant woman from jail, at the request of an attorney who claimed her unborn child was being unlawfully detained.

Natalia Harrell, 24, who is eight months pregnant, is charged with in the fatal shooting mother of three Gladys Borcela on July 23, 2022.

​Harrell was charged with second-degree murder and has been held at the Miami-Dade jail without bond since July 2022. She faces a maximum sentence of life in prison and a $10,000 fine. Her next court date is March 7.

The father of Harrell’s unborn child hired attorney William N. Norris to represent the couple’s fetus. Norris just represents the fetus, not Harrell, and has not spoken with her attorney about their respective cases.

Norris challenged the detention of Harrell's fetus, and also claimed the mother has been denied "proper and continual prenatal medical care and nutrition." He asked for Harrell to be released on house arrest with permission to leave for doctor’s visits.

James Reyes, the director of the Miami jail, said in a Feb. 20 court filing that Harrell has received adequate nutrition and prenatal care in jail.

Norris argued to the court that “the Florida Legislature has expressed a clear intent to afford certain protections to unborn children.” Florida state law bans abortion after 15 weeks of pregnancy. Another state law says someone can be charged with murder for killing an unborn child by injuring the mother.

"An unborn child is accepted as a 'person' in many respects under the law," he tells 

Florida’s 3rd District Court of Appeals rejected his argument to get the mother released from jail and placed on house arrest.

In an 11-page ruling, the court said Harrell’s unborn child is not unlawfully detained because it exists inside its mother, who is lawfully detained.

“The argument is illogical,” continued the court's statement. “The mother comes to us as a badly disguised Trojan Horse. In fact, the argument is nothing more than an attempt for the mother to leverage her unborn child as a basis to be released from lawful detention.” 

The rights of fetuses are a developing area of the law.

In June 2022, when the Supreme Court overturned Roe V. Wade and left abortion rights to the states, Justice Samuel Alito clarified in his ruling, “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” 

Still, lawmakers are exploring fetal personhood laws. The “Unborn Child Support Act,” introduced in the U.S. Congress in 2022, would potentially award child support payments to pregnant women. In Georgia, “any unborn child with a detectable human heartbeat” now qualifies as a dependent on income tax forms, according to the state Department of Revenue. In Texas, the penal code defines an “individual” as a “human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.” 

According to Steven M. Shepard, a New York-based trial lawyer who is not involved with Harrell's case, there are implications to establishing a fetus as a person. 

“A state could enact all sorts of restrictions on women’s freedoms, liberties and choices,” he tells, adding, “One way to ban abortion is to end the procedure itself; another is to create a more sweeping law that declares a fetus a person.” 

New York attorney Peter E. Brill, who is not involved in Harrell's case but reviewed the court documents, adds, "Over the past 50 years, anti-abortion political groups strategized to slowly erode abortion rights ... If someone can get a court to declare that in certain situations, a fetus is a person, even in states where abortion is legal, under some circumstances, doctors and mothers could be prosecuted for murder."

Norris tells he doesn't want to take a position on abortion.

“We’re asking for a decision on a basic philosophical issue,” he says. “We want someone to look at this from the point of view that you’re dealing with a person here.” 

Norris tells that his next step will be filing an emergency motion in the circuit court.