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Fetal rights orfoetal rights (alternativelyprenatal rights[1][2]) are themoral rights orlegal rights of the humanfetus undernatural andcivil law. The termfetal rights came into wide usage afterRoe v. Wade, the 1973landmark case that legalizedabortion in the United States and was essentially overturned in 2022.[3][4] The concept of fetal rights has evolved to include the issues of maternalsubstance use disorders, includingalcohol use disorder andopioid use disorder.[5] Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth."[6] While most internationalhuman rights instruments lack a universal inclusion of thefetus as a person for the purposes of human rights, the fetus is granted various rights in theconstitutions andcivil codes of some countries.[7]
There are jurisdictions where children in the prenatal stage are assigned rights even before they reach the fetal stage. For example, in Italy, embryos are considered subjects of law already after fertilization and even before implantation (if fertilization happensin vitro).[8] The termfetus itself is not exactly suitable for legal purposes, as it denotes only a part of the prenatal period with a starting point that remains unclear. Furthermore, its archetypal meaning is associated with plants, contributing to the dehumanization of the child in the prenatal stage.[9][unreliable source?]
In antiquity, the fetus was sometimes protected by restrictions on abortion.[citation needed] Some versions of theHippocratic Oath indirectly protected the fetus by prohibitingabortifacients.[10] Until approximately the mid-19th century, philosophical views on the fetus were influenced in part byAristotelian concept of delayedhominization.[11] According to it, human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human.[11] 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.[11] ForPythagoreans, however, fetal life was co-equal in moral worth with adult human life from the moment of conception; similar views were held byStoics.[12] Ancient Athenian law did not recognise fetalright to life before the ritual acknowledgement of the child.[13] The law, however, allowed for the postponement of the execution of sentenced pregnant women until a baby was delivered.[14]
SeveralHindu texts on ethics and righteousness, such asDharmaśāstra, give fetus a right to life from conception, although in practice such texts are not always followed.[15]
Theproperty law of theRoman Empire granted fetus inheritance rights.[16] As long as the fetus was conceived before thetestator's death (usually, the father) and then born alive, their inheritance rights were equal to those born before the testator's death.[16] Even though underRoman law the fetus was not a legal subject, it was a potential person whose property rights were protected after birth.[16] Roman juristUlpian noted that "in theLaw of the Twelve Tables he who was in the womb is admitted to the legitimate succession, if he has been born".[17] Another juristJulius Paulus 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".[17] The inheritance rights of the fetus were means of fulfilling the testator's will.[16] The interests of the fetus could be protected by acustodian, usually a male relative, but in some cases a woman herself could be appointed the custodian.[18] TheDigest granted the fetusconsanguinity rights,[19] vesting the protection of fetal interests in thepraetor. The Digest also prohibited the execution of pregnant women until delivery.[20] 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.[21] 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.[21] At the same time, Greek and Roman sources do not mention issues of alcohol consumption by pregnant women.[22] On that basis it is believed that Greeks and Romans were not aware of thefetal alcohol syndrome.[22]
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. TheSynod of Neo-Caesarea decided that the baptism of a pregnant woman in any stage of gestation did not include the fetus.[23] In the Middle Ages, fetal rights were closely associated with the concept ofensoulment. In some cases the fetus could also inherit or be in theorder of succession. In the Byzantine Empire, a fetus was regarded as anatural person and could inherit alongside blood descendants and slaves.[24] Byzantine EmperorMichael VIII Palaiologos allowed soldiers to transfer theirpronoiai to their unborn children.[25] The unborn royals were increasingly granted the right to succession. In 1284, King of ScotlandAlexander III designated his future unborn children asheirs presumptive by theact of parliament to avoid potential squabbles among loyal descendants of his lineage.[26] The 1315entail of Scottish kingRobert the Bruce allowed the unborn collateral individuals to be in line for the throne beyond his brotherEdward and daughterMarjorie Bruce.[26] After the death ofAlbert II of Germany in 1439, his then-unborn sonLadislaus the Posthumous inherited his father's sovereign rights.[27] In 1536, the British Parliament gave the unborn children ofHenry VIII andJane Seymour precedence in the line of royal succession.[28] The medieval distinction between the ensouled and the unensouled fetus was removed after PopePius IX decreed in 1854 that the ensoulment ofVirgin Mary occurred at conception.[29]
In 1751, a pamphlet "The Petition of the Unborn Babes to the Censors of the Royal College of Physicians of London" by physicianFrank Nicholls was published, advocating fetal right to life and protection. The pamphlet anticipated many of the arguments of the 21st century'spro-life movement.[30] In 1762, English jurist and judgeWilliam 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.[31] The fetus was thus considered a person for purposes of inheritance.[31] Similarly to the Roman law, theNapoleonic Code envisaged that if a woman becomes a widow, a male guardian should be appointed for her unborn child.[32]
In the 20th century and particularly after World War II fetal rights issues continued to develop. In 1948, theDeclaration 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".[33] 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".[34] In 1975, while interpreting the right to life under theBasic Law of Germany, theFederal 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.[35] The 1980s witnessed the reappearance of fetal protection in the workplace, aimed at guarding fetal health in potentially hazardous working conditions.[36] In 1983, Ireland was one of the first countries in the world to constitutionalize a fetal right to life by passing theEighth Amendment to the Constitution, later repealed in September 2018.[37]
The only modern international treaty specifically tackling the fetal rights is theAmerican Convention on Human Rights which envisages the fetalright to life from the moment ofconception.[38] The convention was ratified by twenty five countries of theAmericas (two countries later denounced the convention leading the current number of ratifiers to be twenty three[39])[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.[41] While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person.[41] 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 andNicaragua).[42]
Based on the 1959Declaration of the Rights of the Child, preambular paragraph 9 of theConvention 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.[43] Such conflict is sometimes calledmaternal-fetal conflict.[44] Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus.[43] The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC.[45] 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 theInternational Covenant on Civil and Political Rights (ICCPR), but it was rejected in favor of less stringent wording.[46] At the same time, ICCPR prohibits the execution of pregnant women.[47]
TheWorld 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".[48] TheDublin Declaration on Maternal Healthcare, 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".[49] Several organizations, such asWorld Health Organization (WHO) andHuman Rights Watch prioritize women'sreproductive rights over fetal rights.[50]
UnderEuropean law, a fetus is generally regarded as anin utero part of the mother and thus its rights are held by the mother.[51] TheEuropean Court of Human Rights opined that the right to life does not extend to fetuses underArticle 2 of the European Convention on Human Rights (ECHR).[51] InH. v. Norway, theEuropean Commission did not exclude that "in certain circumstances" the fetus may enjoy "a certain protection under Article 2, first sentence".[52] Two European Union member states (Hungary and Slovakia) grant the fetus theconstitutional right to life. TheConstitution of Norway grants the unborn royal children the right of succession to the throne.[53] InEnglish common law, fetus is granted inheritance rights under theborn alive rule.[51]
Islamic law grants the fetus the right to life particularly afterensoulment, which according to various Islamic jurists happens after 40–42 days or four months after conception[54] (someShiite jurists believe the ensoulment occurs after 11 to 14 days, during theimplantation of thefertilized egg in theuterine wall).[55] Both theSunni 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.[55] 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 legitimatelegator who dies after its conception.[55]
The legal debate on fetal rights sometimes invokes the notion offetal viability.[56] Its primary determinant is fetallung capacity which typically develops at twenty-three to twenty-four weeks.[56] 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.[56] It was nonetheless stated that technology has made it possible to regard the fetus as apatient independent of the mother.[3] InWinnipeg Child and Family Services v. G., the judges argued that "technologies like real-timeultrasound, fetalheart monitors andfoetoscopy can clearly show us that the fetus is alive" and thus the born alive rule is "outdated and indefensible".[57]
The creation ofhuman embryos for all research purposes is prohibited by theConvention 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 candidateoocyte donors.[58]
In most jurisdictions, children in the prenatal stage are not considered subjects of law, or bearers of subjective rights. According to Aude Bertrand-Mirkovic, children in the prenatal stage are human persons but do not need legal personhood, as their rights can be protected by objective law.[59] In civil law, legislature often resort toinfans conceptus rule, which is rooted inRoman law and means that the pre-born child is treated as born whenever it is considered in their interest.[60] Enforcement of this rule is subjected to a condition of live (and sometimes viable) birth.[61][unreliable source?] InCommon law, there exists theBorn alive rule, — the principle applied in criminal matters which says that ‘a person cannot be held responsible for injuries inflicted on a foetus in utero unless and until it is born alive’.[62]
In some countries, such as the Republic of El Salvador,[63] the Italian Republic,[64] and the Republic of Peru,[65] the child in the prenatal stage is endowed with the status of a subject of law. Recognition of a child in the prenatal stage as a subject of law in practice does not imply the prohibition of abortion[66][unreliable source?] and does generally imply the emergence of subjective non-property rights. In contrast, most subjective property rights may arise before birth but can be exercised already after birth.
According to Oleksandra Steshenko[who?], prenatal personhood should be seen as legal personhood of a particular type, as its scope and content differ from the personhood of born people:[67][unreliable source?]a) prenatal personhood always lacks the capacity to act;[68][unreliable source?]b) it does not necessarily require the civil registration of prenatal existence;[69][unreliable source?] c) the beginning of prenatal existence can be determined, when necessary, using legal presumptions;[70] d) every prenatal right should be weighed against the rights of a pregnant mother and, where relevant, against rights of a father;[71][unreliable source?] e) as the duration of prenatal existence increases, the child gradually acquires a broader range of rights with increasing scope.[72][unreliable source?]
| Country | Constitutional protection of fetal rights | Recognition of personhood | |||
|---|---|---|---|---|---|
 Canada | No | No | 223. When child becomes human being[73] 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:
| ||
 Chile | Yes | Article 19[74] The Constitution guarantees all persons:1.The right to life and to the physical and mental integrity of the person.
| Yes | ||
 Dominican Republic | Yes | Article 37[75] 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[76] 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[77] 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 | ||
 Guatemala | Yes | Article 3[78] 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[79] 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[80] The unborn shall be considered as born for all rights accorded within the limits established by law. | Yes | ||
 Madagascar | Yes | Article 19[81] 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 | ||
 Peru | Yes | Article 2.[82] 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 | ||
 Brazil | No | Yes | Article 2.[83] The civil personality of the person starts in the birth with the life, but the law safeguard, since the conception, the rights of the unborn. | ||
 Philippines | Yes | Section 12[84] 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[85] 1. Everyone has the right to life. Human life is worthy of protection already before birth. | Yes | ||
 Solomon Islands | No | Yes[86] | |||
TheEighth Amendment of the Constitution of Ireland gave "the unborn" a right to life equal to that of "the mother".[87] In 2018, theSupreme Court ruled that the fetus' only inherent constitutionally protected right is the right to be born, overturning aHigh Court ruling that a fetus additionally possessed thechildren's rights guaranteed byArticle 42A of the Constitution.[88] On 25 May 2018, areferendum was passed[89] which amended the Constitution by the substitution of the former provision recognising the right to life of the unborn, with one permitting theOireachtas, the Irish Parliament, to legislate for the termination of pregnancies.[90] This amendment took effect when it was signed into law by thePresident of Ireland on 18 September 2018, andabortion was governed by theProtection of Life During Pregnancy Act 2013 until it was replaced and repealed by theHealth (Regulation of Termination of Pregnancy) Act 2018, which took effect on 1 January 2019.
In the United States, as of 2014[update], thirty-eightstates 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.[91] All US states–by statute, court rule or case law–permit a guardianad litem to represent the interests of the unborn.[92] In 1999, theUnborn Victims of Violence Act was introduced intoUnited States Congress which defines violentassault committed against pregnant women as being acrime against two victims: the woman and the fetus she carries.[93] This law was passed in 2004 after themurder ofLaci Peterson and the fetus she was carrying. In 2002, U.S.PresidentGeorge W. Bush announced a plan to ensurehealth care coverage for fetuses under theState Children's Health Insurance Program (SCHIP).[94]
Thecivil codes of several countries, such as China (including Hong Kong and Macau)[95] and Russia, as well as some US states,[92] 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.[citation needed] Under the civil code of Japan, for the purposes of inheritance the fetus is deemed to have already been born.[96] The civil codesof 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".[97][98] The same is allowed by theMalikis.[99]
Alongside Norway, theConstitution of Bhutan grants the unborn royal children the right to succession, but only if there is no male heir.[100]
Various initiatives, prompted by concern for the ill effects which might be posed to the health ordevelopment 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.
Article 4(1) of the convention has been identified by international human rights experts as the most emphatic recognition of the prenatal right to life to date in international human rights law.
The essence of prenatal rights, in the context of a maternal duty of care, is the right to be born with a sound mind and body.
In the Universal Declaration of Human Rights, the foundation of human rights, the text and negotiating history of the "right to life" explicitly premises human rights on birth. Likewise, other international and regional human rights treaties, as drafted and/or subsequently interpreted, clearly reject claims that human rights should attach from conception or any time before birth. They also recognise that women's right to life and other human rights are at stake where restrictive abortion laws are in place.
B, Article 6: An unborn child shall also be included among those entitled to the succession and shall immediately take her or his proper place in the line of succession as soon as she or he is born into the world.
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