South Carolina Prenatal Equal Protection Act: Penalties, IVF, and Status

The South Carolina Prenatal Equal Protection Act is a proposed state law that would classify abortion as homicide by redefining “person” in the criminal code to include an embryo or fetus from the moment of fertilization. If enacted, it would allow prosecutors to charge abortion as murder, manslaughter, or assault under the same statutes that apply to crimes against anyone already born, and it would remove the blanket protection pregnant women currently have from prosecution. The bill was first introduced in 2023 as House Bill 3549 and reintroduced in 2025 as House Bill 3537. Neither version has moved out of the House Judiciary Committee.¹

What the Bill Would Change in the Criminal Code

The bill inserts new language into Title 16, Chapter 3 of the South Carolina Code, the chapter governing crimes against persons. Its central move is a definition: “person” would include an unborn child at every stage of development from fertilization through live birth, and that definition would apply to both the homicide and assault sections of the criminal code.²¹

Fertilization is defined as the fusion of a human sperm cell with a human egg. The bill picks that moment rather than implantation, cardiac activity, viability, or any later developmental marker. From the instant of fertilization forward, an embryo would carry the same legal status as a person already born for purposes of criminal homicide and assault law.

This is a sharp break from current South Carolina law. The state’s 2023 fetal heartbeat law bans most abortions after cardiac activity is detected, generally around six weeks, and punishes a violating physician with up to two years in prison and a $10,000 fine. It carries exceptions for medical emergencies threatening the woman’s life or risking substantial and irreversible impairment of a major bodily function, for pregnancies resulting from rape or incest up to twelve weeks, and for fatal fetal anomalies.³ South Carolina also has a separate fetal homicide statute that treats harm to an unborn child during a violent crime as a distinct offense, but that statute expressly excludes consensual abortion, medical treatment of the pregnant woman, and prosecution of the woman herself.⁴ The Prenatal Equal Protection Act contains no equivalent blanket protections.

Criminal Penalties That Would Apply

Because the bill reclassifies an embryo or fetus as a “person,” the existing homicide and assault statutes would apply to abortion exactly as they apply to killing or injuring anyone else. There is no separate, lighter penalty track for offenses involving an unborn child.

Murder. A murder conviction in South Carolina carries a mandatory minimum of thirty years to life in prison, or the death penalty. Murder requires proof of malice, meaning the killing was intentional or showed depraved indifference to life.⁵⁶
Manslaughter. An unlawful killing without malice carries two to thirty years. Prosecutors could pursue manslaughter where they believed the act lacked premeditation or resulted from criminal negligence.⁷
Assault and battery. Conduct that harms an unborn child without causing death could be charged as assault. The most serious form, assault and battery of a high and aggravated nature, is a felony carrying up to twenty years.⁸

Prosecutors would use the same evidentiary standards and procedural rules that apply to any other violent crime investigation.

Could the Pregnant Woman Be Prosecuted?

Under current South Carolina law, no. The heartbeat ban flatly prohibits criminal or civil penalties against the pregnant woman,³ and the fetal homicide statute carries the same protection.⁴

Under the Prenatal Equal Protection Act, that protection disappears. The bill contains no exemption for the pregnant woman. What it offers instead is an affirmative defense: a mother can argue she should not be convicted if she was “compelled to [engage in] the proscribed conduct because she was compelled to do so by the threat of imminent death or great bodily injury.” That language appears in both the 2023 version and the 2025 reintroduction.²¹

The distinction between an exemption and an affirmative defense is substantial. An exemption means the state cannot bring charges at all. An affirmative defense means the state can arrest, charge, and try the defendant, who then bears the burden of proving the defense applies at trial. Under this bill, a woman could face homicide prosecution for an abortion. To avoid conviction, she would need to show that a third party threatened her with imminent death or serious bodily harm if she did not go through with it. A woman who sought an abortion for any other reason, including her own health concerns short of such a threat, would have no statutory defense in the bill’s text.

What Doctors Would and Would Not Be Protected For

The bill carves out limited protection for physicians. A licensed doctor who provides medical care to avert the death of a pregnant woman is not in violation of the act if three things are all true: the injury or death to the unborn child was accidental or unintentional, all reasonable alternatives to save the child were attempted, and those alternatives were unavailable or had failed.²

A separate provision shields physicians and other licensed healthcare workers from criminal liability for mistakes or unintentional errors made during medical treatment.² A routine procedure that accidentally harms a pregnancy is covered, provided the harm was genuinely unintended. Intentional acts are not.

These exemptions are narrower than what the existing heartbeat ban allows. Current law also exempts procedures performed because of a pregnancy resulting from rape or incest, and procedures performed because of a fatal fetal anomaly. The Prenatal Equal Protection Act recognizes only life-threatening emergencies and unintentional errors. A doctor who terminates a pregnancy because of a fatal fetal anomaly or because the pregnancy resulted from rape would have no defense under this bill.

What It Could Mean for IVF

Because personhood begins at fertilization, the bill’s definition reaches further than pregnancy. Standard in-vitro fertilization creates multiple embryos, transfers the most viable, and freezes or discards the rest. If every fertilized egg is a legal person under the state’s homicide laws, discarding unused embryos could fall within the statute’s scope.

The bill’s text refers to an “unborn child at every stage of development from fertilization until live birth” without limiting the definition to embryos inside the womb.² Whether a South Carolina court would read that phrase to include embryos in a laboratory dish is an open question, but the plain language creates real uncertainty for fertility clinics and their patients. In February 2024, the Alabama Supreme Court ruled that frozen embryos are “unborn children” under Alabama law. Several Alabama IVF clinics temporarily suspended services, and the legislature passed emergency legislation to shield providers from liability. Louisiana has long prohibited the intentional destruction of embryos, treating any embryo that develops for 36 hours after fertilization as a legal person.

Where the Bill Stands Now

House Bill 3549 was prefiled on December 15, 2022, by Representative Rob Harris and several cosponsors, introduced on January 10, 2023, and referred to the House Judiciary Committee. In the weeks that followed, a notable number of legislators who had signed on later removed their names.² Republican legislative leaders publicly stated the bill would not become law during that session.

The bill was reintroduced in the 2025–2026 session as House Bill 3537, again sponsored by Representative Harris with several cosponsors, and referred to the House Judiciary Committee, where it remains as of early 2026.¹ Neither version has received a committee vote or a floor vote. The reintroduction keeps the proposal alive in legislative debate, but the lack of committee action over two consecutive sessions is the clearest signal of its current prospects.

1
South Carolina Legislature. 2025-2026 Bill 3537 – South Carolina Prenatal Equal Protection Act
2
South Carolina Legislature. South Carolina General Assembly – H. 3549
3
South Carolina Legislature. South Carolina Code of Laws Title 44 Chapter 41 – Abortion
4
South Carolina Legislature. South Carolina Code of Laws Title 16 Chapter 3 – Section 16-3-1083
5
South Carolina Legislature. South Carolina Code 16-3-20 – Punishment for Murder
6
South Carolina Legislature. South Carolina Code 16-3-10 – Murder Defined
7
South Carolina Legislature. South Carolina Code 16-3-50 – Manslaughter
8
South Carolina Legislature. South Carolina Code 16-3-600 – Assault and Battery Definitions and Degrees of Offenses