Fetal rights

Source: Wikipedia, the free encyclopedia.

Fetal rights are the

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]

History

See also: History of abortion law debate

In antiquity, the fetus was sometimes protected by restrictions on abortion.[

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

fetal alcohol syndrome.[18]

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

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

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

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

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]

Modern regulations

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])[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.[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

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

English common law, fetus is granted inheritance rights under the born alive rule.[47]

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

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]

Fetal rights by country

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:
(a) it has breathed;
(b) it has an independent circulation; or
(c) the navel string is severed.
 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.

The law protects the life of the unborn.
 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]
  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][36]
United States President George W. Bush signs the Unborn Victims of Violence Act of 2004

The

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

State Children's Health Insurance Program (SCHIP).[76]

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]

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.

See also

Notes

References

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