moral rights
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions.
The moral rights include the right of attribution, the right to have a work ...
landmark case
Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly ...
opioid use disorder
Opioid use disorder (OUD) is a substance use disorder characterized by cravings for opioids, continued use despite physical and/or psychological deterioration, increased tolerance with use, and withdrawal symptoms after discontinuing opioids. O ...
. Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." 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.
History
In antiquity, the fetus was sometimes protected by restrictions on abortion. Some versions of the Hippocratic Oath indirectly protected the fetus by prohibiting abortifacients. Until approximately the mid-19th century, philosophical views on the fetus were influenced in part by Aristotelian concept of delayed hominization. According to it, human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human. 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. For
Pythagoreans
Pythagoreanism originated in the 6th century BC, based on and around the teachings and beliefs held by Pythagoras and his followers, the Pythagoreans. Pythagoras established the first Pythagorean community in the ancient Greek colony of Kroton, ...
, however, fetal life was co-equal in moral worth with adult human life from the moment of conception; similar views were held by Stoics. Ancient Athenian law did not recognise fetal right to life before the ritual acknowledgement of the child. The law, however, allowed for the postponement of the execution of sentenced pregnant women until a baby was delivered.
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.
The property law of the Roman Empire granted fetus inheritance rights. As long as the fetus was conceived before the
testator
A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."Gordon Brown, ''Administration of Wills, Trusts, and Estates'', 3d ed. (2003), p. 556 ...
's death (usually, the father) and then born alive, their inheritance rights were equal to those born before the testator's death. Even though under
Roman law
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Ju ...
the fetus was not a legal subject, it was a potential person whose property rights were protected after birth. 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". Another jurist
Julius Paulus Prudentissimus
Julius Paulus ( el, Ἰούλιος Παῦλος; fl. 2nd century and 3rd century AD), often simply referred to as Paul in English, was one of the most influential and distinguished Roman jurists. He was also a praetorian prefect under the Roma ...
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". The inheritance rights of the fetus were means of fulfilling the testator's will. The interests of the fetus could be protected by a
custodian
Custodian may refer to:
Occupations
* Janitor, a person who cleans and maintains buildings
* Goalkeeper, in association football
* Fullback, in rugby, also called a sweeper
* Legal guardian or conservator, who may be called a custodian in some ...
, usually a male relative, but in some cases a woman herself could be appointed the custodian. The Digest granted the fetus
consanguinity
Consanguinity ("blood relation", from Latin '' consanguinitas'') is the characteristic of having a kinship with another person (being descended from a common ancestor).
Many jurisdictions have laws prohibiting people who are related by blood fr ...
rights, vesting the protection of fetal interests in the praetor. The Digest also prohibited the execution of pregnant women until delivery. 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. 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. At the same time, Greek and Roman sources do not mention issues of alcohol consumption by pregnant women. On that basis it is believed that Greeks and Romans were not aware of the fetal alcohol syndrome.
After the spread of Christianity, an issue emerged: 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
The Synod of Neo-Caesarea was a church synod held in Neocaesarea, Pontus, shortly after the Synod of Ancyra, probably about 314 or 315 (although Hefele inclines to put it somewhat later).
Its principal work was the adoption of fifteen disciplinar ...
decided that the baptism of a pregnant woman in any stage of gestation did not include the fetus. In the Middle Ages, fetal rights were closely associated with the concept of
ensoulment
In religion and philosophy, ensoulment is the moment at which a human or other being gains a soul. Some belief systems maintain that a soul is newly created within a developing child and others, especially in religions that believe in reincarnation ...
. In some cases the fetus could also inherit or be in the
order of succession
An order of succession or right of succession is the line of individuals necessitated to hold a high office when it becomes vacated such as head of state or an honour such as a title of nobility.natural person and could inherit alongside blood descendants and slaves. Byzantine Emperor Michael VIII Palaiologos allowed soldiers to transfer their pronoiai to their unborn children. 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. The 1315
entail
In English common law, fee tail or entail is a form of trust established by deed or settlement which restricts the sale or inheritance of an estate in real property and prevents the property from being sold, devised by will, or otherwise alien ...
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. After the death of
Albert II of Germany
Albert the Magnanimous KG, elected King of the Romans as Albert II (10 August 139727 October 1439) was king of the Holy Roman Empire and a member of the House of Habsburg. By inheritance he became Albert V, Duke of Austria. Through his wife (''j ...
in 1439, his then-unborn son
Ladislaus the Posthumous
Ladislaus the Posthumous( hu, Utószülött László; hr, Ladislav Posmrtni; cs, Ladislav Pohrobek; german: link=no, Ladislaus Postumus; 22 February 144023 November 1457) was Duke of Austria and King of Hungary, Croatia and Bohemia. He was the ...
inherited his father's sovereign rights. In 1536, the British Parliament gave the unborn children of Henry VIII and Jane Seymour precedence in the line of royal succession. 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.
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
Frank Nicholls (1699 – 7 January 1778) was a physician. He was elected a Fellow of the Royal Society in 1728. He was made reader of anatomy at Oxford University when young and moved to London in the 1730s.
Life
The second son of John Nicholl ...
was published, advocating fetal right to life and protection. The pamphlet anticipated many of the arguments of the 21st century's pro-life movement. 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. The fetus was thus considered a person for purposes of inheritance. 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.
In the 20th century and particularly after World War II fetal rights issues continued to develop. In 1948, the
Declaration of Geneva
The Declaration of Geneva was adopted by the General Assembly of the World Medical Association at Geneva in 1948, amended in 1968, 1983, 1994, editorially revised in 2005 and 2006 and amended in 2017.
It is a declaration of a physician's dedicati ...
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". In 1967, ''
American Bar Association Journal
The ''ABA Journal'' (since 1984, formerly ''American Bar Association Journal'', 1915–1983, evolved from '' Annual Bulletin'', 1908–1914) is a monthly legal trade magazine and the flagship publication of the American Bar Association. It is no ...
'' 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". In 1975, while interpreting the right to life under the
Basic Law of Germany
The Basic Law for the Federal Republic of Germany (german: Grundgesetz für die Bundesrepublik Deutschland) is the constitution of the Germany, Federal Republic of Germany.
The West German Constitution was approved in Bonn on 8 May 1949 an ...
, the
Federal Constitutional Court
The Federal Constitutional Court (german: link=no, Bundesverfassungsgericht ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its in ...
opined that "life in the sense of historical existence of a human individual" exists "at least from the 14th day after conception ( nidation,
individuation
The principle of individuation, or ', describes the manner in which a thing is identified as distinct from other things.
The concept appears in numerous fields and is encountered in works of Leibniz, Carl Gustav Jung, Gunther Anders, Gilbert Sim ...
)" and thus everyone's right to life under the Basic Law of Germany includes the unborn as human beings. The 1980s witnessed the reappearance of fetal protection in the workplace, aimed at guarding fetal health in potentially hazardous working conditions. 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.
Modern regulations
The only modern international treaty specifically tackling the fetal rights is the
American Convention on Human Rights
The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into for ...
which envisages the fetal right to life from the moment of conception. 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 ) 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. While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person. 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
The Dominican Republic ( ; es, República Dominicana, ) is a country located on the island of Hispaniola in the Greater Antilles archipelago of the Caribbean region. It occupies the eastern five-eighths of the island, which it shares with ...
Declaration of the Rights of the Child
The Declaration of the Rights of the Child, sometimes known as the Geneva Declaration of the Rights of the Child, is an international document promoting child rights, drafted by Eglantyne Jebb and adopted by the League of Nations in 1924, and adop ...
, preambular paragraph 9 of the
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Co ...
(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. Such conflict is sometimes called maternal-fetal conflict. Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus. The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC. 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. At the same time, ICCPR prohibits the execution of pregnant women.
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". 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". Several organizations, such as World Health Organization (WHO) and Human Rights Watch prioritize women's reproductive rights over fetal rights.
Under
European law
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
, a fetus is generally regarded as an
in utero
''In Utero'' is the third and final studio album by American rock band Nirvana. It was released on September 21, 1993, by DGC Records. After breaking into the mainstream with their second album, ''Nevermind'' (1991), Nirvana hired Steve Albin ...
part of the mother and thus its rights are held by the mother. 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
Article 2 of the European Convention on Human Rights protects the right to life. The article contains a limited exception for the cases of lawful executions and sets out strictly controlled circumstances in which the deprivation of life may be j ...
(ECHR). 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". Two European Union member states (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. In
English common law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, fetus is granted inheritance rights under the born alive rule.
Islamic law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
grants the fetus the right to life particularly after
ensoulment
In religion and philosophy, ensoulment is the moment at which a human or other being gains a soul. Some belief systems maintain that a soul is newly created within a developing child and others, especially in religions that believe in reincarnation ...
, which according to various Islamic jurists happens after 40–42 days or four months after conception (some
Shiite
Shīʿa Islam or Shīʿīsm is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (''khalīfa'') and the Imam (spiritual and political leader) after him, most ...
jurists believe the ensoulment occurs after 11 to 14 days, during the implantation of the
fertilized egg
A zygote (, ) is a eukaryotic cell formed by a fertilization event between two gametes. The zygote's genome is a combination of the DNA in each gamete, and contains all of the genetic information of a new individual organism.
In multicellula ...
in the uterine wall). 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. 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.
The legal debate on fetal rights sometimes invokes the notion of fetal viability. Its primary determinant is fetal
lung capacity
Lung volumes and lung capacities refer to the volume of air in the lungs at different phases of the respiratory cycle.
The average total lung capacity of an adult human male is about 6 litres of air.
Tidal breathing is normal, resting breathin ...
which typically develops at twenty-three to twenty-four weeks. 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. It was nonetheless stated that technology has made it possible to regard the fetus as a patient independent of the mother. In '' Winnipeg Child and Family Services v. G.'', the judges argued that "technologies like real-time ultrasound, fetal heart monitors and foetoscopy can clearly show us that the fetus is alive" and thus the born alive rule is "outdated and indefensible".
The creation of human embryos for all research purposes is prohibited by the
. 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.
Fetal rights by country
The
Eighth Amendment of the Constitution of Ireland
The Eighth Amendment of the Constitution Act 1983 was an amendment to the Constitution of Ireland which inserted a subsection recognising the equal right to life of the pregnant woman and the unborn. Abortion had been subject to criminal penal ...
gave "the unborn" a right to life equal to that of "the mother". 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. On 25 May 2018, a referendum was passed 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. 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
The Protection of Life During Pregnancy Act 2013 ( Act No.35 of 2013; previously Bill No.66 of 2013) was an Act of the Oireachtas which, until 2018, defined the circumstances and processes within which abortion in Ireland could be legally perfor ...
until it was replaced and repealed by the
Health (Regulation of Termination of Pregnancy) Act 2018
The Health (Regulation of Termination of Pregnancy) Act 2018 ( Act No. 31 of 2018; previously Bill No. 105 of 2018) is an Act of the Oireachtas (Irish parliament) which defines the circumstances and processes within which abortion may be legally ...
, which took effect on 1 January 2019.
In the United States, , 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. All US states–by statute, court rule or case law–permit a guardian ad litem to represent the interests of the unborn. 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.Congress of the United States of America. (25 March 2004). Unborn Victims of Violence Act of 2004 .'' H.R.1997. Retrieved 31 July 2006. This law was passed in 2004 after the murder of
Laci Peterson
The ''lac'' repressor (LacI) is a DNA-binding protein that inhibits the expression of genes coding for proteins involved in the metabolism of lactose in bacteria. These genes are repressed when lactose is not available to the cell, ensuring that ...
and the fetus she was carrying. In 2002, U.S. PresidentGeorge W. Bush announced a plan to ensure health care coverage for fetuses under the State Children's Health Insurance Program (SCHIP).The Bush Administration's Plan for Fetal Care ." (7 February 2002). ''On Point.'' Retrieved 31 July 2006.
The civil codes of several countries, such as China (including Hong Kong and Macau) and Russia, as well as some US states, 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. Under the civil code of Japan, for the purposes of inheritance the fetus is deemed to have already been born. 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". The same is allowed by the Malikis.
Alongside Norway, the
Constitution of Bhutan
The Constitution of Bhutan (Dzongkha: འབྲུག་གི་རྩ་ཁྲིམས་ཆེན་མོ་; Wylie:'' 'Druk-gi cha-thrims-chen-mo'') was enacted 18 July 2008 by the Royal Government of Bhutan. The Constitution was thoroughl ...
grants the unborn royal children the right to succession, but only if there is no male heir.
Behavioral intervention
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.
*Many jurisdictions actively warn against the consumption of alcoholic beverages by pregnant women, recommending a maximum intake or total abstinence, due to its association with fetal alcohol syndrome. Countries that encourage those who are pregnant to avoid alcohol either entirely or partially include Australia, Canada, France, Iceland,
Israel
Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
Spain
, image_flag = Bandera de España.svg
, image_coat = Escudo de España (mazonado).svg
, national_motto = ''Plus ultra'' (Latin)(English: "Further Beyond")
, national_anthem = (English: "Royal March")
, i ...
, the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
, and the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
Governor
A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
Arkansas
Arkansas ( ) is a landlocked state in the South Central United States. It is bordered by Missouri to the north, Tennessee and Mississippi to the east, Louisiana to the south, and Texas and Oklahoma to the west. Its name is from the O ...
, citing studies which attribute 10% of infant deaths to tobacco-smoking mothers, considered adopting a smoking ban for pregnant women in 2006 with the aim of reducing infant mortality."Some Legislators Want To Ban Pregnant Women From Smoking" (14 June 2006). ''The Hometown Channel.'' Retrieved 31 July 2006.
*No
U.S. state
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sove ...
has enacted a law which criminalizes specific behavior during pregnancy, but, nonetheless, it has been estimated that at least 200 American women have been criminally prosecuted or arrested under existing child abuse statutes for allegedly bringing about harm in-utero through their conduct during pregnancy.
Center for Reproductive Rights
The Center for Reproductive Rights (CRR) is a global legal advocacy organization that seeks to advance reproductive rights, such as abortion. The organization's stated mission is to "use the law to advance reproductive freedom as a fundamental huma ...
umbilical cord
In placental mammals, the umbilical cord (also called the navel string, birth cord or ''funiculus umbilicalis'') is a conduit between the developing embryo or fetus and the placenta. During prenatal development, the umbilical cord is physiologi ...
India
India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the so ...
Taiwan
Taiwan, officially the Republic of China (ROC), is a country in East Asia, at the junction of the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the nort ...
, have sometimes led to
sex-selective abortion
Sex-selective abortion is the practice of terminating a pregnancy based upon the predicted sex of the infant. The selective abortion of female fetuses is most common where male children are valued over female children, especially in parts of Eas ...
of female fetuses, leading to the disparity between male-to-female birth rates which is observed in some places. It is a crime in all these jurisdictions to procure an abortion for the purposes of sex selection.China Makes Sex-Selective Abortions a Crime". Reproductive Health Matters. 13 (25): 203. 2005