From Imminence to Institutional Incidence: Rethinking Fetal Status Beyond Metaphysical Classification.

Abstract

This response examines Joel Cox's proposal to reconceptualise fetal moral status as "imminent personhood." While welcoming Cox's effort to move beyond static potential/actual personhood binaries, it argues that the concept of imminence remains metaphysically suggestive but institutionally under-determined. Legal systems cannot operate on continuously variable metaphysical properties; they require discrete and administrable allocations of rights, duties, and powers. To address this gap, the paper proposes an institutional incidence framework, in which legal status is understood as the selective assignment of juridical incidents according to regulatory objectives without treating metaphysical classification as dispositive. On this view, the central question is not simply whether the fetus is a person (actual, potential, or imminent), but which incidents of legal status should attach at particular stages and for particular regulatory purposes. This reframes the legal regulation of abortion as a problem of institutional design rather than ontological determination. The paper argues that such an approach better explains existing legal practice, avoids threshold arbitrariness, and enables stable legal regulation amid persistent moral disagreement. While Cox's imminence proposal captures an important phenomenology of fetal development, an institutional incidence framework provides a more durable foundation for legal and policy architecture in pluralistic societies.