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 Roe v. Wade , the 1973 landmark case that legalized abortion in the United States. [1] [2] The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder. [3] Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." [4] 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. [5]
In antiquity, the fetus was sometimes protected by restrictions on abortion.[ citation needed ] Some versions of the Hippocratic Oath indirectly protected the fetus by prohibiting abortifacients. [6] Until approximately the mid-19th century, philosophical views on the fetus were influenced in part by Aristotelian concept of delayed hominization. [7] According to it, human fetuses only gradually acquire their souls, and in the early stages of pregnancy the fetus is not fully human. [7] 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. [7] 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. [8] Ancient Athenian law did not recognise fetal right to life before the ritual acknowledgement of the child. [9] The law, however, allowed for the postponement of the execution of sentenced pregnant women until a baby was delivered. [10]
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. [11]
The property law of the Roman Empire granted fetus inheritance rights. [12] As long as the fetus was conceived before the testator's death (usually, the father) and then born alive, their inheritance rights were equal to those born before the testator's death. [12] Even though under Roman law the fetus was not a legal subject, it was a potential person whose property rights were protected after birth. [12] 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". [13] Another jurist Julius 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". [13] The inheritance rights of the fetus were means of fulfilling the testator's will. [12] 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. [14] The Digest granted the fetus consanguinity rights, [15] vesting the protection of fetal interests in the praetor. The Digest also prohibited the execution of pregnant women until delivery. [16] 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. [17] 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. [17] At the same time, Greek and Roman sources do not mention issues of alcohol consumption by pregnant women. [18] On that basis it is believed that Greeks and Romans were not aware of the fetal alcohol syndrome. [18]
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 decided that the baptism of a pregnant woman in any stage of gestation did not include the fetus. [19] 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, a fetus was regarded as a natural person and could inherit alongside blood descendants and slaves. [20] Byzantine Emperor Michael VIII Palaiologos allowed soldiers to transfer their pronoiai to their unborn children. [21] 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. [22] 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. [22] After the death of Albert II of Germany in 1439, his then-unborn son Ladislaus the Posthumous inherited his father's sovereign rights. [23] In 1536, the British Parliament gave the unborn children of Henry VIII and Jane Seymour precedence in the line of royal succession. [24] 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. [25]
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. [26] 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. [27] The fetus was thus considered a person for purposes of inheritance. [27] 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. [28]
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". [29] 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". [30] 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. [31] The 1980s witnessed the reappearance of fetal protection in the workplace, aimed at guarding fetal health in potentially hazardous working conditions. [32] 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. [33]
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. [34] 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 [35] ) [lower-alpha 1] 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. [37] While the convention may be interpreted to permit domestic abortion laws in exceptional circumstances, it effectively declares the fetus a person. [37] 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). [38]
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. [39] Such conflict is sometimes called maternal-fetal conflict. [40] Under CRC, the rights of a pregnant girl are interpreted as superseding those of her fetus. [39] The states retain the power to decide for themselves what prenatal legal protection they would adopt under CRC. [41] 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. [42] At the same time, ICCPR prohibits the execution of pregnant women. [43]
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". [44] 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". [45] Several organizations, such as World Health Organization (WHO) and Human Rights Watch prioritize women's reproductive rights over fetal rights. [46]
Under European law, a fetus is generally regarded as an in utero part of the mother and thus its rights are held by the mother. [47] 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). [47] 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". [48] 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. [49] In English common law, fetus is granted inheritance rights under the born alive rule. [47]
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 [50] (some Shiite jurists believe the ensoulment occurs after 11 to 14 days, during the implantation of the fertilized egg in the uterine wall). [51] 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. [51] 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. [51]
The legal debate on fetal rights sometimes invokes the notion of fetal viability. [52] Its primary determinant is fetal lung capacity which typically develops at twenty-three to twenty-four weeks. [52] 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. [52] 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, fetal heart monitors and foetoscopy can clearly show us that the fetus is alive" and thus the born alive rule is "outdated and indefensible". [53]
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. [54]
Country | Constitutional protection of fetal rights | Recognition of personhood | |||
---|---|---|---|---|---|
Canada | No | No | 223. When child becomes human being [55] 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 [56] 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 [57] 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 [58] 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 [59] 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 [60] 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 [61] 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 [62] The unborn shall be considered as born for all rights accorded within the limits established by law. | Yes | ||
Madagascar | Yes | Article 19 [63] 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. [64] 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. [65] 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 [66] 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 [67] 1. Everyone has the right to life. Human life is worthy of protection already before birth. | Yes | ||
Solomon Islands | No | Yes [68] | |||
The Eighth Amendment of the Constitution of Ireland gave "the unborn" a right to life equal to that of "the mother". [69] 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. [70] On 25 May 2018, a referendum was passed [71] 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. [72] 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 [update] , 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. [73] All US states–by statute, court rule or case law–permit a guardian ad litem to represent the interests of the unborn. [74] 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. [75] 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). [76]
The civil codes of several countries, such as China (including Hong Kong and Macau) [77] and Russia, as well as some US states, [74] 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. [78] 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". [79] [80] The same is allowed by the Malikis. [81]
Alongside Norway, the Constitution of Bhutan grants the unborn royal children the right to succession, but only if there is no male heir. [82]
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.
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication.
Abortion in the United Kingdom is de facto available under the terms of the Abortion Act 1967 in Great Britain and the Abortion (No.2) Regulations 2020 in Northern Ireland. The procurement of an abortion remains a criminal offence in Great Britain under the Offences Against the Person Act 1861, although the Abortion Act provides a legal defence for both the pregnant woman and her doctor in certain cases. Although a number of abortions did take place before the 1967 Act, there have been around 10 million abortions in the United Kingdom. Around 200,000 abortions are carried out in England and Wales each year and just under 14,000 in Scotland; the most common reason cited under the ICD-10 classification system for around 98% of all abortions is "risk to woman's mental health."
Abortion in Ireland is regulated by the Health Act 2018. Abortion is permitted in Ireland during the first twelve weeks of pregnancy, and later in cases where the pregnant woman's life or health is at risk, or in the cases of a fatal foetal abnormality. Abortion services commenced on 1 January 2019, following its legalisation by the aforementioned Act, which became law on 20 December 2018. Previously, the 8th Constitutional Amendment had given the life of the unborn foetus the same value as that of its mother, but the 36th constitutional amendment, approved by referendum in May 2018, replaced this with a clause permitting the Oireachtas (parliament) to legislate for the termination of pregnancies.
Abortion is a divisive issue in the United States. The issue of abortion is prevalent in American politics and culture wars, though a majority of Americans support continued access to abortion. There are widely different abortion laws depending on state.
The abortion debate is a longstanding, ongoing controversy that touches on the moral, legal, medical, and religious aspects of induced abortion. In English-speaking countries, the debate most visibly polarizes around adherents of the self-described "pro-choice" and "pro-life" movements. Pro-choice supporters uphold that individuals have the right to make their own decisions about their reproductive health, and that they should have the option to end a pregnancy if they choose to do so, taking into account various factors such as the stage of fetal development, the health of the mother, and the circumstances of the conception. Pro-life advocates, on the other hand, maintain that a fetus is a human being with inherent rights that cannot be overridden by the mother’s choice or circumstances, and that abortion is morally wrong in most or all cases. Both terms are considered loaded in mainstream media, where terms such as "abortion rights" or "anti-abortion" are generally preferred.
The Unborn Victims of Violence Act of 2004 is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."
Abortion laws vary widely among countries and territories, and have changed over time. Such laws range from abortion being freely available on request, to regulation or restrictions of various kinds, to outright prohibition in all circumstances. Many countries and territories that allow abortion have gestational limits for the procedure depending on the reason; with the majority being up to 12 weeks for abortion on request, up to 24 weeks for rape, incest, or socioeconomic reasons, and more for fetal impairment or risk to the woman's health or life. As of 2022, countries that legally allow abortion on request or for socioeconomic reasons comprise about 60% of the world's population. In 2024, France became the first country to explicitly protect abortion rights in its constitution.
Abortion in Germany is legal on demand during the first 12 weeks of pregnancy upon condition of mandatory counseling. The same goes later in pregnancy in cases that the pregnancy poses an important danger to the physical or mental health of the pregnant woman. In the case that the abortion is because of a rape counseling is not mandatory. The woman needs to receive counseling, called Schwangerschaftskonfliktberatung, at least three days prior to the abortion and must take place at a state-approved centre, which afterwards gives the applicant a Beratungsschein.
In pregnancy terms, quickening is the moment in pregnancy when the pregnant woman starts to feel the fetus's movement in the uterus.
The born alive rule is a common law legal principle that holds that various criminal laws, such as homicide and assault, apply only to a child that is "born alive". U.S. courts have overturned this rule, citing recent advances in science and medicine, and in several states feticide statutes have been explicitly framed or amended to include fetuses in utero. Abortion in Canada is still governed by the born alive rule, as courts continue to hold to its foundational principles. In 1996, the Law Lords confirmed that the rule applied in English law but that alternative charges existed in lieu, such as a charge of unlawful or negligent manslaughter instead of murder.
Pregnant patients' rights or Pregnant women's rights refers to the choices and legal rights available to a woman experiencing pregnancy or childbirth. Specifically those under medical care within a medical establishment or those under the care of a medical professional regardless of location.
This is a timeline of reproductive rights legislation, a chronological list of laws and legal decisions affecting human reproductive rights. Reproductive rights are a sub-set of human rights pertaining to issues of reproduction and reproductive health. These rights may include some or all of the following: the right to legal or safe abortion, the right to birth control, the right to access quality reproductive healthcare, and the right to education and access in order to make reproductive choices free from coercion, discrimination, and violence. Reproductive rights may also include the right to receive education about contraception and sexually transmitted infections, and freedom from coerced sterilization, abortion, and contraception, and protection from practices such as female genital mutilation (FGM).
The beginning of human personhood is the moment when a human is first recognized as a person. There are differences of opinion as to the precise time when human personhood begins and the nature of that status. The issue arises in a number of fields including science, religion, philosophy, and law, and is most acute in debates relating to abortion, stem cell research, reproductive rights, and fetal rights.
Abortion in Colombia is freely available on request up to the 24th week of pregnancy, due to a ruling by the Constitutional Court on February 21, 2022. Later in pregnancy, it is only allowed in cases of risk of death to the pregnant woman, fetal malformation, or rape, according to a Constitutional Court ruling in 2006.
The legality of abortion in the United States and the various restrictions imposed on the procedure vary significantly depending on the laws of each state or other jurisdiction. Some states prohibit abortion at all stages of pregnancy with few exceptions, others permit it up to a certain point in a woman's pregnancy, while others allow abortion throughout a woman's pregnancy. In states where abortion is legal, several classes of restrictions on the procedure may exist, such as parental consent or notification laws, requirements that patients be shown an ultrasound before obtaining an abortion, mandatory waiting periods, and counseling requirements.
Foeticide, or feticide, is the act of killing a fetus, or causing a miscarriage. Definitions differ between legal and medical applications, whereas in law, feticide frequently refers to a criminal offense, in medicine the term generally refers to a part of an abortion procedure in which a provider intentionally induces fetal demise to avoid the chance of an unintended live birth, or as a standalone procedure in the case of selective reduction.
Born alive laws in the United States are fetal rights laws that extend various criminal laws, such as homicide and assault, to cover unlawful death or other harm done to a fetus in utero or to an infant that has been delivered. The basis for such laws stems from advances in medical science and social perception, which allow a fetus to be seen and medically treated as an individual in the womb and perceived socially as a person, for some or all of the pregnancy.
Abortion-rights movements, also self-styled as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pregnancy without fear of legal or social backlash. These movements are in direct opposition to anti-abortion movements.
Abortion in Ohio is legal on request up to the point of fetal viability. After viability, abortion is legal if, in the professional judgement of an attending physician, the abortion is necessary to protect the pregnant individual’s life or health.
Abortion in Europe varies considerably between countries and territories due to differing national laws and policies on its legality, availability of the procedure, and alternative forms of support for pregnant women and their families.
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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