Unborn and Future Children as New Legal Subjects: An Evaluation of Two Subject-Oriented Approaches—The Subject of Rights and the Subject of Interests

Abstract

The desire to prevent prenatal and preconceptual harm has led to a call for more legal protection for unborn and future children. This Article analyzes the way in which the Dutch legal system has responded to this call by identifying and critically scrutinizing two strategies employed in this response. First, to protect the unborn child from maternal harm, the concept of legal personality has been expanded to include the unborn child, albeit only the viable fetus. This strategy is criticized because its measures are presented as if they follow directly from the existing legal framework, whereas these measures are in fact based on several obscured assumptions and, therefore, bring to bear a new perspective on the concept of legal personality. The second strategy is applied to the future child. Instead of expanding an existing category, a new category is created to offer the future child a place within the law. The future child is addressed as the subject of legal relevant interests instead of rights. Although this strategy seems promising, it still faces difficulties when applied to the future child, which presumably has an interest in non-existence.