The Legal Status of the Embryo and the Fetus

Abstract

Legal attitudes to fetuses and newborns have varied over time, some cultures proscribing abortion and infanticide, some early codes giving the fetus indirect protection by prohibiting the striking of a woman so as to cause the death of her unborn child (Codes). In other cultures, abortion and infanticides were seen as acceptable resolutions of dilemmas posed by scarce resources, birth defects or sexual balance. Neither ancient Greek nor early Roman law forbade abortion, the latter not regarding the unborn child as a living human being. The common law has long drawn a fundamental distinction between the fetus and the child following birth. Recent developments in common law jurisprudence have, however, seen the recognition of interests — notice the importance of that term, interests, not rights — against harm to the child before its birth.

The question of control over genetic products and the limits to be imposed creates problems in terms of both application of existing legislation and principles of law, and respect for the fundamental principles and values of our society, in particular individual freedoms and human dignity. (Council of Europe, 1989)