On the conflict of norms on criminal liability of special subjects for encroachment on life and health of a newborn or unborn child

Abstract

From the standpoint of Russian criminal law, the life and health of an unborn child are not independent objects of criminal and legal protection. This article shows that the government can use more opportunities to guarantee the life and health of not only a pregnant woman, but also an unborn child, as well as a newborn child. The article pays special attention to the problem of conflict of norms on the responsibility of special subjects of illegal artificial termination of pregnancy. With the actual complicity of subjects of different types in the illegal termination of pregnancy: 1) a pregnant woman; 2) a person who is not a medical professional; and (or) 3) a medical worker – the qualification of the deed must be carried out in accordance with the principle of individual responsibility, by choosing one of the related elements of crimes with the corresponding sign of a special subject. However, at present, the legal question of the basis of a woman’s responsibility for illegal termination of pregnancy has not been resolved, and it is not clear by what criteria the legislation differentiates the administrative and criminal liability of medical workers and other persons for the same acts (Article 6.32 of the Administrative Code of the Russian Federation and Article 123 of the Criminal Code of the Russian Federation). In recent years, scientific studies have appeared justifying the expediency of criminalizing a number of socially dangerous acts committed by pregnant women and women in labor (maternity hospitals). The position of the authors of this article is only partially consistent with the proposals made. The authors of the article do not question the right of a woman to make an independent decision on the birth of a child, but recognize as justified the criminal law prohibition on artificial termination of pregnancy when there are no circumstances of a medical or social nature that exclude or significantly reduce the public danger of this act. The article argues that the range of new types of acts committed by maternity hospitals proposed in the doctrine for the purpose of criminalization is unreasonably expanded, in particular, there are no grounds for criminalizing the murder of a terminally ill newborn child by a mother on the grounds of compassion;intentional infliction by a mother of minor harm to the health of a newborn child, as well as causing death by negligence to a newborn child by a mother who is in a state of intoxication.