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If the rights or wrongs of abortion are a judicial matter rather than political, central to it would seem to be the question of what defines a "person".

Critical to the idea that abortion should be illegal seems to be that a foetus is defined as a person, and is entitled to all the rights etc as such.

Civil law (including commercial law, in the United States and all English-speaking jurisdictions) has its own definitions of persona which is in some ways more extensive and in others less so than in criminal law. For example legally constituted companies, or governmental bodies etc have legal personality and can sue or be sued.

But is there ANY branch of the law, in any country of which subscribers may be aware - where a foetus is given legal personality separate to that of the mother?

For example, I could leave money in my will to my 5 year-old granddaughter, and, should she not survive me, - to "any of her ( currently unborn) issue". That would not mean that the unborn issue at the time of writing the will had legal personality - but they would acquire it at birth. But is there any country where they might acquire it at e.g. conception? The question is not as irrelevant as it might sound, since if a foetus, for example, inherited money, but did not survive birth - would the money in question become part of a separate estate in their name, and dealt with appropriately, under laws of intestacy. Does anyone know of any country where that, for example, might be the case?

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  • 4
    "central to it would seem to be the question of what defines a "person"": not necessarily. There are all sorts of laws that protect things, including living things, without considering them to be "persons." Also, being mentally or otherwise incompetent to act in law does not cause a person not to be a person.
    – phoog
    May 4, 2022 at 10:00
  • @phoog Indeed there are laws that protect things - in Britain some buildings are "listed" meaning that because of their historical value they cannot be demolished. But those are laws of enacted statute. Buildings do not have inherent rights in common law as people do (nor do they have legal personality) - and that is what the US Supreme Court is there to defend, as much as the Constitution. I did not suggest that anyone mentally incompetent ceased to be a person- merely that in some circumstances a person ceases to be a legal person. But that is only incidental to my question.
    – WS2
    May 4, 2022 at 12:51
  • I am perhaps technically wrong in saying that a person who is mentally incapacitated ceases to be a legal persona. They undoubtedly retain that, but they lack "legal capacity". But as stated this is an entirely incidental point.
    – WS2
    May 4, 2022 at 12:55
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    On what basis are we making the claim that abortion is a judicial matter? Why not a moral or a religious matter. Also why are we not thinking the whole concept of a judiciary is not in essence a moral issue?
    – Neil Meyer
    May 4, 2022 at 21:17
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    @NeilMeyer On the basis that abortion clearly, and unmistakeably IS a judicial matter. It is also a moral and religious matter. I don't understand your last sentence. If you are asking why a judiciary does not always follow moral principles - then that is a valid question but not one being addressed here.
    – WS2
    May 5, 2022 at 7:26

2 Answers 2

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The law isn’t just concerned with people

Animal welfare laws, for example, impose obligations on people to do or refrain from doing things for the benefit of animals who are clearly not people.

Pro- or anti-abortion law could be made with or without recognising a foetus as a person.

Example of laws that give legal status to a foetus

In you can murder a foetus.

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  • Which it is in most US states, and most of Europe. That is not the point of my question.
    – WS2
    May 5, 2022 at 7:21
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    This is so dismissive and does virtually nothing to answer the question. Apr 5, 2023 at 22:27
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The American Convention on Human Rights Art. 4(1) says that

Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

States also have distinct "fetal murder" statutes such as Washington's RCW 9A.32.060 which prohibits

intentionally and unlawfully kill[ing] an unborn quick child by inflicting any injury upon the mother of such child.

While the law does not declare a fetus to be a person, it treats a fetus as more person-like than for example a dog (dogslaughter is a civil matter). Under Texas Penal Code 19.03(8), capital murder includes murdering an individual under 10 years of age, where "individual" is defined in Penal Code §1.07(26) as "a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth". The word "person" is not used, instead "individual" is substituted (and also includes people who are already born).

Art. 6 para 2 of the Norwegian Constitution (pertaining to royal succession) states that

An unborn child shall also be included among those entitled to the succession and shall immediately take her or his proper place in the line of succession as soon as she or he is born into the world

however this proviso does not say "person" (which is the Norwegian word for 'person', but I can't swear that in legal contexts the word is used the same as it is in).

This page gathers together pertinent instances of legal person-like treatment of fetuses. The difficulty lies in concluding that a particular advantageous position of a fetus is because of their "person" status. There are a number of conjectured future developments of the idea of fetal personhood discussed here which also refers to has treatments of a fetus as a person in light of child-endangerment laws.

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  • Some interesting material here. I assume that in the Norwegian case the term "unborn child" includes one yet to be conceived. In that respect it seems the Norwegian position as regards the royal succession is no different to the British - except that it appears that in Norway it is governed by written constitution - and Britain doesn't have one of those.
    – WS2
    May 27, 2023 at 9:12
  • Lots of living creatures are "protected" in Britain - e.g. swans on the rivers are "royal birds" and protected in law. One can be prosecuted for killing one. But that does not accord each swan a "legal persona" - they cannot sue, be sued, or own property.
    – WS2
    May 27, 2023 at 9:16

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