In the past few years, more than half the states have enacted fetal rights laws making it a crime to harm a fetus either through violence, neglect or abuse. Politics aside, economics are driving these new laws. The direct health expenditures for babies born with birth problems, birth defects or developmental disabilities exceed $10 billion a year.

Smoking while pregnant, for example, is the greatest risk factor for delivering a low birth-weight (LBW) infant. In 1988, hospital costs for a LBW infant averaged $6,200 while the cost of a normal, healthy delivery averaged $1,900.

Again, putting aside other arguments, protecting a fetus makes economic sense. As long as this view holds, more actions will be taken to view the fetus as a person. In March 2002, for example, the Bush administration classified an embryo and developing fetus as an "unborn child." This ruling will allow prenatal care to low-income pregnant women under the State Children's Health Insurance Program. Timely prenatal care helps ensure the delivery of a healthy baby that helps to lower healthcare costs.

The case against employers

Views in society help drive legal opinions regarding fetal protection. Courts in a growing number of states now allow workers' children to sue their parent's employer over birth defects or developmental disabilities. Plaintiff's arguments include:

  • The fetus is a person.
  • The employer did not inform the parent of all workplace reproductive hazards - therefore the parent was not able to make a risk decision for the protection of the fetus.
  • The employer did not take proper actions to anticipate, recognize, evaluate or control workplace reproductive hazards.
  • And, directly or indirectly, workplace exposure to reproductive hazards ultimately harmed the child.

A comprehensive workplace reproductive health program should address these growing legal challenges, but check with your attorney to be sure.

In addition to addressing legal challenges, a workplace reproductive health program should:

  • Address growing knowledge of workplace reproductive hazards.
  • Complement your existing safety and health activities.
  • Help control employee healthcare costs.
  • Enhance your company image among employees and the community.

How do you measure up?

The following questionnaire identifies the major elements in a comprehensive workplace reproductive health program. Follow the instructions to see how your company's program measures up.

Instructions: 1) This questionnaire should be completed by a team that is independent from the conditions or activities being evaluated. 2) One member of the team should be knowledgeable in workplace reproductive health issues. 3) One member of the team should be experienced in conducting a gap analysis or environmental health and safety audit. In addition to checking the appropriate box, objective findings should be recorded for each question.

Scorecard: Assign two points for each question marked "yes" and one point for each question marked "partial."

  • 45-54 points - Meets or exceeds the elements in a comprehensive workplace reproductive health program.

  • 35-44 points - Improvements may be necessary depending upon site-specific circumstances.

  • 25-34 points - Improvements highly recommended. A workplace reproductive health program exists but with substantial weaknesses.

  • < 25 points - A workplace reproductive health program should be implemented. Workplace may not be recognized as having a reproductive health program.

    The questionnaire may serve as a gap analysis between the current state of your company's workplace reproductive health program and future conditions representing a comprehensive state.

    Completing a gap analysis for a workplace reproductive health program is often the first step in preparing a report to management to seek approval for program improvements.

    OSHA standards do not drive the implementation or improvements for a workplace reproductive health program. OSHA standards address only about six reproductive hazards while more than 1,000 workplace reproductive hazards are currently identified. Most importantly, OSHA standards are designed to protect healthy working adults, not a fetus or "unborn child."

    Instead, workplace reproductive health programs are being driven by the views and expectations of society and the courts.