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Fetal rights are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after the landmark case Roe v. Wade that legalized abortion in the United States in 1973.[1] The concept of fetal rights has evolved to include the issues of maternal drug and alcohol abuse.[2] The only international treaty specifically tackling fetal rights is the American Convention on Human Rights which envisages the right to life of the fetus. While international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of several countries. Many legal experts believe there is an increasing need to settle the legal status of the fetus.[1]

Contents

HistoryEdit

In antiquity, the fetus was sometimes protected by restrictions on abortion. Some versions of the Hippocratic Oath indirectly protected fetus by prohibiting abortifacients.[3] Until approximately the mid-19th century, philosophical views on the fetus were influenced in part by Aristotelian concept of delayed hominization.[4] According to it, human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human.[4] Relying on examinations of miscarried fetuses, Aristotle believed that male fetuses acquire their basic form at around day 40, and female ones at day 90.[4] For Pythagoreans, however, fetal life was co-equal in moral worth with adult human life from the moment of conception; similar views were held by Stoics.[5] Ancient Athenian law did not recognise fetal right to life before the ritual acknowledgement of the child.[6] The law, however, allowed to postpone the execution of sentenced pregnant women until a baby was delivered.[7]

Several Hindu texts on ethics and righteousness, such as Dharmaśāstra, give fetus a right to life from conception, although in practice such texts are not always followed.[8]

The property law of Roman Empire granted fetus inheritance rights.[9] As long as the fetus was conceived before the testator's death (usually, the father) and then born alive, his or her inheritance rights were equal to those born before the testator's death.[9] Even though under the Roman law the fetus was not a legal subject, it was a potential person whose property rights were protected after birth.[9] Roman jurist Ulpian noted, that "in the Law of the Twelve Tables he who was in the womb is admitted to the legitimate succession, if he has been born".[10] Another jurist Julius Paulus Prudentissimus similarly noted, that "the ancients provided for the free unborn child in such a way that they preserved for it all legal rights intact until the time of birth".[10] The inheritance rights of the fetus were means of fulfilling the testator's will.[9] The interests of the fetus could be protected by a custodian, usually a male relative, but in some cases a woman herself could be appointed the custodian.[11] The Digest granted the fetus consanguinity rights,[12] vesting the protection of fetal interests in the praetor. The Digest also prohibited the execution of pregnant women until delivery.[13] The Roman law also envisaged that if a slave mother had been free for any period between the time of the conception and childbirth, the child would be regarded as born free.[14] Although the mother might have become slave again before the childbirth, it was considered that the unborn should not be prejudiced by the mother's misfortune.[14] At the same time, Greek and Roman sources do not mention issues of alcohol consumption by pregnant women.[15] On that basis it is believed that Greeks and Romans were not aware of the fetal alcohol syndrome.[15]

 
A baby holding the "Petition of the Unborn Babes", 18th century illustration.

After the spread of Christianity an issue emerged on whether it was permissible for a pregnant woman to be baptised before childbirth, due to uncertainty as to whether the fetus would be cobaptised with its mother. The Synod of Neo-Caesarea decided that the baptism of a pregnant woman in any stage of gestation did not include the fetus.[16] In the Middle Ages, fetal rights were closely associated with the concept of ensoulment. In some cases the fetus could also inherit or be in the order of succession. In the Byzantine Empire, fetus was regarded as a natural person and could inherit alongside blood descendents and slaves.[17] Byzantine Emperor Michael VIII Palaiologos allowed soldiers to transfer their pronoiai to their unborn children.[18] The unborn royals were increasingly granted the right to succession. In 1284, King of Scotland Alexander III designated his future unborn children as heirs presumptive by the act of parliament to avoid potential squabbles among loyal descendants of his lineage.[19] The 1315 entail of Scottish king Robert the Bruce allowed the unborn collateral individuals to be in line for the throne beyond his brother Edward and daughter Marjorie Bruce.[19] After the death of Albert II of Germany in 1439, his then-unborn son Ladislaus the Posthumous inherited his father's sovereign rights.[20] In 1536, the British Parliament gave the unborn children of Henry VIII and Jane Seymour precedence in the line of royal succession.[21] The medieval distinction between the ensouled and the unensouled fetus was removed after Pope Pius IX decreed in 1854 that the ensoulment of Virgin Mary occurred at conception.[22]

In 1751, a pamphlet "The Petition of the Unborn Babes to the Censors of the Royal College of Physicians of London" by physician Frank Nicholls was published, advocating fetal right to life and protection. The pamphlet anticipated many of the arguments of the 21st century's pro-life movement.[23] In 1762, English jurist and judge William Blackstone wrote that an "infant in its mother's womb" could benefit from a legacy and receive an estate as if it were actually bom.[24] The fetus was thus considered a person for purposes of inheritance.[24] Similarly to the Roman law, the Napoleonic Code envisaged that if a woman becomes a widow, a male guardian should be appointed for her unborn child.[25]

In the 20th century and particularly after World War II fetal rights issues continued to develop. In 1948, the Declaration of Geneva was adopted which prior to amendments in 1983 and 2005, advised physicians to "maintain the utmost respect for human life from the time of its conception".[26] In 1967, American Bar Association Journal noted "the modern trend of legal decisions that grant every property and personal right to the unborn child, including the right to life itself, from conception on".[27] In 1975, while interpreting the right to life under the Basic Law of Germany, the Federal Constitutional Court opined that "life in the sense of historical existence of a human individual" exists "at least from the 14th day after conception (nidation, individuation)" and thus everyone's right to life under the Basic Law of Germany includes the unborn as human beings.[28] The 1980s witnessed the reappearance of fetal protection in the workplace, aimed at guarding fetal health in potentially hazardous working conditions.[29] In 1983, Ireland was one of the first countries in the world to constitutionalize a fetal right to life by passing the Eighth Amendment to the Constitution, later repealed in September 2018.[30]

Modern regulationsEdit

The only modern international treaty specifically tackling the fetal rights is the American Convention on Human Rights which envisages the fetal right to life from the moment of conception.[31] The convention was ratified by twenty five countries of the Americas (two countries later denounced the convention leading the current number of ratifiers to be twenty three [32])[a] in 1973–1993. Mexico ratified the convention with the reservation that the expression "in general" concerning the fetal right to life does not constitute an obligation and that this matter falls within the domain of the states.[34] While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person.[34] However, only a minority of state ratifiers completely prohibit abortion without allowing for an exception when the pregnant woman's life is in danger (Dominican Republic, El Salvador and Nicaragua).[35]

Based on the 1959 Declaration of the Rights of the Child, preambular paragraph 9 of the Convention on the Rights of the Child (CRC) states that "the child... needs... appropriate legal protection before as well as after birth", but due to ambiguity the legal protection of the fetus conflicts with the rights of a pregnant girl under the same Convention.[36] Such conflict is sometimes called maternal–fetal conflict.[37] Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus.[36] The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC.[38] A proposal to grant fetus the right to life from conception was put forward by Belgium, Brazil, El Salvador, Mexico and Morocco during drafting of the International Covenant on Civil and Political Rights (ICCPR), but it was rejected in favor of less stringent wording.[39] At the same time, ICCPR prohibits the execution of pregnant women.[40]

The World Medical Association Declaration on Therapeutic Abortion notes that "circumstances bringing the interests of a mother into conflict with the interests of her unborn child create a dilemma and raise the question as to whether or not the pregnancy should be deliberately terminated".[41] The Dublin Declaration on Maternal Health, signed in 2012, prioritizes fetal right to life by noting that "there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child".[42] Several organizations, such as World Health Organization (WHO) and Human Rights Watch prioritize women's reproductive rights over fetal rights.[43]

Under European law, fetus is generally regarded as an in utero part of the mother and thus its rights are held by the mother.[44] The European Court of Human Rights opined that the right to life does not extend to fetuses under Article 2 of the European Convention on Human Rights (ECHR),[44] although it does not confer on the European Court of Human Rights the authority to impose relevant laws on European Union member states.[45][unreliable source] In H. v. Norway, the European Commission did not exclude that "in certain circumstances" the fetus may enjoy "a certain protection under Article 2, first sentence".[46] Three European Union member states (Ireland, Hungary and Slovakia) grant the fetus the constitutional right to life. The Constitution of Norway grants the unborn royal children the right of succession to the throne.[47] In English common law, fetus is granted inheritance rights under the born alive rule.[44]

Islamic law grants the fetus the right to life particularly after ensoulment, which according to various Islamic jurists happens after 40–42 days or four months after conception[48] (some Shiite jurists believe the ensoulment occurs after 11 to 14 days, during the implantation of the fertilized egg in the uterine wall).[49] Both the Sunni and Shiite jurists accord the fetus inheritance rights under two conditions: if a man dies and a pregnant wife survives him, the fetal right to inherit is secure and the inheritance cannot be disposed of before the fetus' share is set aside.[49] Under the second condition, if a woman aborts the fetus at any stage and ignores any vital signs, the fetus is entitled to the inheritance of any legitimate legator who dies after its conception.[49]

The legal debate on fetal rights sometimes invokes the notion of fetal viability.[50] Its primary determinant is fetal lung capacity which typically develops at twenty-three to twenty-four weeks.[50] The twenty-three weeks is usually regarded as the lower bound of fetal viability because technology has been unable to surpass the limit set by lung development.[50] It was nonetheless stated that technology has made it possible to regard the fetus as a patient independent of the mother.[1] In Winnipeg Child and Family Services v. G., the judges argued that "technologies like real-time ultrasound, foetal heart monitors and foetoscopy can clearly show us that the foetus is alive" and thus the born alive rule is "outdated and indefensible".[51]

The creation of human embryos for all research purposes is prohibited by the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine. However, similarly to the abortion debate, in the normative debate on embryo research two views can be distinguished: a "fetalist" view focusing on the moral value of the embryo, and a "feminist" view advocating the interests of women, particularly candidate oocyte donors.[52]

Fetal rights by countryEdit

Country Constitutional protection of fetal rights Recognition of personhood
  Canada No No
223. When child becomes human being[53]
A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother , whether or not:
(a) it has breathed;
(b) it has an independent circulation; or
(c) the navel string is severed.
  Chile Yes
Article 19[54]
The Constitution guarantees all persons:

1.The right to life and to the physical and mental integrity of the person.

The law protects the life of the unborn .
Yes
  Dominican Republic Yes
Article 37[55]
The right to life is inviolable from conception until death. The death penalty may not be established, pronounced, nor applied in any case.
Yes
  Ecuador Yes
Article 45[56]
Children and adolescents shall enjoy the rights that are common to all human beings, in addition to those that are specific to their age. The State shall recognize and guarantee life, including care and protection from the time of conception.
Yes
  El Salvador Yes
Article 1[57]
El Salvador recognizes the human person as the origin and the end of the activity of the State, which is organized to attain justice, judicial security, and the common good.
In that same manner, it recognizes as a human person every human being since the moment of conception.
Yes
  Equatorial Guinea Yes
Article 23
The State protects the person from its conception and fosters the minor in order for him to develop normally and with security for his moral, mental, and physical integrity, as well as his life within the home.
Yes
  Germany No Yes
219. Counselling of the pregnant woman in a situation of emergency or conflict
The counselling serves to protect unborn life. It should be guided by efforts to encourage the woman to continue the pregnancy and to open her to the prospects of a life with the child; it should help her to make a responsible and conscientious decision. The woman must thereby be aware that the unborn child has its own right to life.
  Guatemala Yes
Article 3[58]
The State guarantees and protects the human life from its conception, as well as the integrity and security of the person.
Yes
  Hungary Yes
Article 2[59]
Human dignity shall be inviolable. Every human being shall have the right to life and human dignity; the life of the foetus shall be protected from the moment of conception.
Yes
  Honduras Yes
Article 67[60]
The unborn shall be considered as born for all rights accorded within the limits established by law.
Yes
  Ireland No (8th Amendment repealed in 2018) No
  Kenya Yes
26. Right to life
  1. Every person has the right to life.
  2. The life of a person begins at conception .
Yes
  Madagascar Yes
Article 19[61]
The State recognizes and organizes for all individuals the right to the protection of health from their conception through the organization of free public health care, which gratuitousness results from the capacity of the national solidarity.
Yes
  Mexico Not federally
Varies by state[b]
Varies by state
  Paraguay Yes
Article 4
The right to life is inherent to the human person. Its protection is guaranteed, in general, from conception.
Yes
  Peru Yes
Article 2.[62]
To life, his identity, his moral, psychical, and physical integrity, and his free development and well-being. The unborn child is a rights-bearing subject in all cases that benefit him.
Yes
  Philippines Yes
Section 12[63]
The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.
Yes
  Slovakia Yes
Article 15[64]
1. Everyone has the right to life. Human life is worthy of protection already before birth.
Yes
  Solomon Islands No Yes[65]
  Uganda Yes
23. Protection of right to life
2. No person has the right to terminate the life of an unborn child except as may be authorised by law.
Yes
  United States Not federally (see Human Life Amendment)
1 state (Alabama)
Not federally
38 states
23 states from conception
  Zambia Yes
12. Protection of right to life
2. No person shall deprive an unborn child of life by termination of pregnancy except in accordance with the conditions laid down by an Act of Parliament for that purpose.
Yes
  Zimbabwe Yes
48. Right to life
3. An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.
Yes
  1. ^ Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Suriname, Trinidad and Tobago (denounced), Uruguay and Venezuela (denounced).[1][33]
  2. ^ Baja California, Sonora, Campeche, Chihuahua, Chiapas, Colima, Durango, Guanajuato, Jalisco, Nayarit, Oaxaca, Puebla, Querétaro, Quintana Roo, San Luis Potosi, Tamaulipas and Yucatan

The Eighth Amendment of the Constitution of Ireland gave "the unborn" a right to life equal to that of "the mother".[66] In 2018, the Supreme Court ruled that the fetus' only inherent constitutionally protected right is the right to be born, overturning a High Court ruling that a fetus additionally possessed the children's rights guaranteed by Article 42A of the Constitution.[67] On 25 May 2018, a referendum was passed[68] which amended the Constitution by the substitution of the former provision recognising the right to life of the unborn, with one permitting the Oireachtas, the Irish Parliament, to legislate for the termination of pregnancies.[69] This amendment took effect when it was signed into law by the President of Ireland on 18 September 2018, and abortion was governed by the Protection of Life During Pregnancy Act 2013 until it was replaced and repealed by the Health (Regulation of Termination of Pregnancy) Act 2018, which took effect on 1 January 2019.

In the United States, as of 2014, thirty-eight states provide certain level of criminal protection for the unborn, and twenty-three of these states have laws that protect the fetus from conception until birth.[70] All US states–by statute, court rule or case law–permit a guardian ad litem to represent the interests of the unborn.[71] In 1999, the Unborn Victims of Violence Act was introduced into United States Congress which defines violent assault committed against pregnant women as being a crime against two victims: the woman and the fetus she carries.[72] This law was passed in 2004 after the murder of Laci Peterson and the fetus she was carrying. In 2002, U.S. President George W. Bush announced a plan to ensure health care coverage for fetuses under the State Children's Health Insurance Program (SCHIP).[73]

The civil codes of several countries, such as China (including Hong Kong and Macau)[74] and Russia, as well as some US states,[71] grant fetus inheritance rights, usually under the born alive rule. In the civil code of Iran, fetus can inherit in case of abortion that took place due to a crime, as long as the fetus was alive even for a second after birth.[75] Under the civil code of Japan, for the purposes of inheritance the fetus is deemed to have already been born.[76] The civil codes of the Philippines and Spain envisage that donations to the unborn children can be made and accepted by "persons who would legally represent them if they were already born".[77][78] The same is allowed by the Malikis.[79]

Alongside Norway, the Constitution of Bhutan grants the unborn royal children the right to succession, but only if there is no male heir.[80]

Behavioral interventionEdit

Various initiatives, prompted by concern for the ill effects which might be posed to the health or development of a fetus, seek to restrict or discourage women from engaging in certain behaviors while pregnant. Also, in some countries, laws have been passed to restrict the practice of abortion based upon the gender of the fetus.

See alsoEdit

NotesEdit

ReferencesEdit

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  35. ^ https://www.bbc.com/news/world-latin-america-37336279
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  59. ^ "Hungary's Constitution of 2011" (PDF). Constitute Project. Retrieved 31 October 2015.
  60. ^ "Honduras's Constitution of 1982 with Amendments through 2012" (PDF). Retrieved 31 October 2015.
  61. ^ "Madagascar's Constitution of 2010" (PDF). Constitute Project. Retrieved 31 October 2015.
  62. ^ "Peru's Constitution of 1993 with Amendments through 2009" (PDF). Constitute Project. Retrieved 31 October 2015.
  63. ^ "Philippines's Constitution of 1987" (PDF). Constitute Project. Retrieved 31 October 2015.
  64. ^ "Slovakia's Constitution of 1992 with Amendments through 2014" (PDF). Constitute Project. Retrieved 31 October 2015.
  65. ^ Penal Code of Solomon Islands
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