Position of the embryo (foetus) in private law: a comparative analysis

peer-reviewedThe concept of ‘foetal rights’ is most frequently associated with the notion of ‘foetal right to life’ and the problem of legality of abortion. Seemingly, such is also the tone of the Irish scholarly debate, where the question of foetal prerogatives is almost always examined in the context of Article 40.3.3° of Bunreacht Na hÉireann and the corresponding legislation. Hence, the debate focuses upon public law protection of the right to life of the unborn, secured by the State. From a more general perspective, determining moral status of the foetus under private law of any country can prove a difficult and controversial task, in both legal theory and in practice. This problem becomes more and more relevant in the current reality, marked by significant developments in the field of perinatology and reproductive medicine. The legislatures’ answer to these incredible advancements is not straightforward. Does tort, contract or family law of jurisdiction X, Y or Z accept that the unborn object of such potentially harmful interventions enjoys certain rights in an independent manner? Or else, does the law simply attempt to safeguard the rights of a potential, future natural person? Does recognition of the corresponding foetal rights in other areas of private law (e.g.: succession) additionally support the foetal personality (capacity) theory? Finally, is acknowledgement of foetal personality (capacity) essential from the pragmatic point of view? The answers to these questions are not likely to emerge from the constitutioncentred Irish scholarly debate. Accordingly, this research project examines the private law dimension of foetal rights from a doctrinal perspective and in a comparative context, while using examples of the corresponding solutions adopted in other selected jurisdictions, most notably in England and Wales, France and Poland. The research, which examines the law in force as of the 1 May 2018, also tackles the above presented hypotheses concerning possible recognition of foetal personality (capacity). Furthermore, the comparative approach implies formulation of certain de lege ferenda remarks, which justify broadening the scope of such protection. It is hoped that thanks to this research project the Irish academic discourse about the rights of an embryo (foetus) could be complemented and enriched. The author ultimately supports the hypothesis, whereby – on the grounds of private law of Ireland and all the other jurisdictions examined – an embryo (foetus) acquires individual rights of patrimonial character, indicated by the law in a concrete manner - either by the statute or through caselaw. Such sui generis construction should not, however, be associated with foetal personality (capacity) per se. Equally, the author does not accept a stance, whereby an embryo (foetus) should be treated as the part of the maternal organism, as if the law protected solely the future natural person. The catalogue of rights and benefits acquired by an embryo (foetus) universally combines elements of the continental concepts of expectative of rights and negotium claudicans (limping legal act), most notably, exercising the rights in questions will be solely possible in the event of subsequent live-birth