Birth event: legal significance of medical criteria for being born alive

Abstract

The event of birth entails the emergence of many legal relationships, and at the same time, the moment from which a person is considered to have been born is determined by subordinate regulatory legal acts. At the same time, subordinate regulatory legal acts use a combination of several criteria, which makes it difficult for citizens to understand the legislation, to whom the legislation is addressed and entails the development of contradictory judicial practice. The purpose of the study is to analyze the criteria for being born alive, the tasks are to find out ways to possibly improve legislation and the practice of its application. Methodology. The study was conducted using historical, comparative legal methods and using an economic and psychological approach. The results of the study: the definition of criteria for being born alive in a subordinate regulatory act is not entirely justified. The existing norms use criteria such as gestational age and weight as criteria for being born alive, but it must be recognized that all these formal criteria are only presumptions introduced to simplify the proof of viability. The presumption of viability is not required if, after the separation of the baby from the mother’s body, one or another sign of being born alive (heartbeat, independent breathing, etc.) is observed. Regulation at the level of a by–law somewhat confuses the facts — the conditions for the application of presumptions and the main fact to be proved — the birth alive. A significant disadvantage of the rules governing birth registration is the rule of 168 hours for an infant born with a gestation period of less than 22 hours. This norm does not fully correspond to the prevailing ideas about birth and death in society and is subjectively perceived by citizens as unfair. Conclusion: the legislation on birth registration needs to be changed in the part in which it does not consider the separation of the fetus from the mother’s body at a gestation period of less than 22 weeks, if the fetal weight is less than 500 g and life expectancy is less than 168 hours, since this criterion, firstly, violates the rules of formal logic (it is considered born… if he has lived for more than 168 hours), secondly, it does not contribute to the protection of the personal intangible benefits of the mother and child, and thirdly, it also does not allow protecting the medical organization from unreasonable liability.