Draft:Prenatal rights

Prenatal rights refer to the rights of a human being from the moment of fertilization until birth. If children in the prenatal stage are recognized as subjects of law within a certain legal system, prenatal rights can be considered subjective rights. Where legal personhood for children in the prenatal stage is not recognized, prenatal rights can be protected by objective law.

Emergence of the concept
The concept of prenatal rights was initially introduced in 2016 by Oleksandra Shramova (Steshenko) in a small academic paper titled “Capacity of the child in the prenatal stage of having rights and obligations (prenatal capacity)”. The concept was further developed in the book “Prenatal Rights”.

Prenatal or fetal?
The term “foetal rights” (or “fetal rights” in the American English) gained wide usage after Roe v. Wade, the U.S. Supreme Court landmark case of 1973 that, in general, legalized abortions on demand in the first trimester, limited abortions in the second trimester, and prohibited them in the third trimester. Therefore, under Roe v. Wade, children in the prenatal stage began to acquire rights no earlier than after becoming a fetus. Roe v. Wade was eventually overturned in 2022.

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 happens in vitro). The term fetus 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.

Prenatal personhood
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. In civil law, legislature often resort to infans conceptus rule, which is rooted in Roman law and means that the pre-born child is treated as born whenever it is considered in their interest. Enforcement of this rule is subjected to a condition of live (and sometimes viable) birth. In Common law, there exists the Born 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’.

In some countries, such as the Republic of El Salvador, the Italian Republic, and the Republic of Peru, 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 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, prenatal personhood should be seen as legal personhood of a particular type, as its scope and content differ from the personhood of born people: a) prenatal personhood always lacks the capacity to act; b) it does not necessarily require the civil registration of prenatal existence; c) the beginning of prenatal existence can be determined, when necessary, using legal presumptions; d) every prenatal right should be weighed against the rights of a pregnant mother and, where relevant, against rights of a father; e) as the duration of prenatal existence increases, the child gradually acquires a broader range of rights with increasing scope.