The juridical status of the unborn: a person, an object or a tertium genus?

Abstract

Legal scholars are currently debating many complex issues regarding the juridical status of unborn human beings (i.e., embryos and fetus): When does human life starts? Are the concepts of “human being” and “person” synonyms? Does the unborn have rights?Some of these questions, namely the biological beginning of human life, are not to be answered by the law, but by medical science. Nonetheless, it is up to the law to establish when should the unborn receive legal protection and under which conditions; and when does it become a person and acquires fundamental and human rights. These issues have legal nature, and, for this reason, the legal solutions are to be set by the lawmaker; but the fact is that they are grounded in knowledge coming from other fields, namely from biology, but also from philosophy and ethics.The present article will examine the various theories regarding the juridical classification of the unborn and the moment in which it acquires rights, trying to compare the Chinese and the Western legal cultures. In the end we will provide a juridical qualification for the unborn, i.e., if it is a person, an object, or something else in between these two categories; and afterwards define the juridical consequences derived from the chosen status.