CYIL vol. 11 (2020)

PETR ŠUSTEK CYIL 11 (2020) can never be convicted of it) 27 . Gestational limits for abortion on request are typical for European national laws that allow such abortions 28 . The current legal approach to abortion strongly suggests that the life of embryo/foetus 29 at the beginning of its development has significantly lower protection than in later stages of pregnancy. If this is the case, it only seems logical that the foetus continues to acquire ever stronger legal protection during the whole pregnancy. From this perspective, the moral and legal status of the foetus should continuously grow until birth. Once the childbirth has commenced, the foetus’ status is higher than at any time before. It can even be argued that since childbirth is a transitional process between the life in utero and the separate life outside of the mother’s body, the status of the child that is being born is also somehow transitional, in a state between the one of a foetus and the status of an already-born person. This special status of the child during the whole process of labour (not only after the moment of birth in legal sense) is also acknowledged by a part of the doctrine. In the course of labour, the foetus cannot merely be considered a part of the mother’s body. Some authors subscribe to the view that the protection of unborn life guaranteed in the second sentence of Article 6 (1) of the Charter is especially relevant in this precise context 30 . Admittedly, the exact status of the child during labour is not clear. 31 However, it can be reasonably assumed that in the course of labour when the decision on medical interventions is being made, the unborn child already has at least a similar level of protection as the child after birth. It needs to be noted that while the ECtHR rejects to form an authoritative opinion on the beginning of human life, it has ruled that human embryos (at least in the first days of their existence) do not have a right to life 32 . This seems to confirm the implicit gradualist approach of the ECtHR to the value of unborn life 33 . Furthermore, some ECtHR judges in their dissenting opinions expressed their belief that unborn children have the right to life that is somewhat weaker than that of children after birth 34 . Even if we do not engage in the debate on the right to life, we can see that gradualism is – to say the least – not unknown to the Strasbourg court. 27 See Sections 159 (illicit interruption of pregnancy without the consent of the pregnant woman) and 160 (illicit interruption of pregnancy with the consent of the pregnant woman) of the Criminal Code. 28 See KRATOCHVÍL, Jan. Právo na život (čl. 2 EÚLP) [Right to Life (Article 2 of the ECHR)]. In KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. Evropská úmluva o lidských právech. Komentář [The European Convention on Human Rights. Commentary]. C. H. Beck, Praha 2012, p. 390. 29 The term embryo is used in the first eight weeks of its development. From the beginning of the ninth week, the unborn human life is called foetus. See for example SADLER, Thomas W. Langmanova lékařská embryologie [Langman’s Medical Embryology]. Translation of the 10 th ed. Grada Publishing, Praha 2011, p. 103. 30 See ŠIROKÁ, Lucie, POVOLNÁ, Michaela. Právo rodící ženy odmítnout péči versus právo dítěte na život a zdraví ve světle judikatury Ústavního soudu a Evropského soudu pro lidská práva [The Right of a Woman in Labour to Refuse Treatment versus the Child’s Right to Life and Health in the Light of the Case-Law of the Czech Constitutional Court and the ECtHR]. Jurisprudence. (2017, Vol. 26, No. 5), p. 21. 31 See ibid., p. 21. 32 See ECtHR, Evans v. the United Kingdom, app. no. 6339/05, Grand Chamber, Judgment of 10 April 2007, para. 56. 33 See KRATOCHVÍL, Jan. Právo na život (čl. 2 EÚLP) [Right to Life (Article 2 of the ECHR)]. In KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. Evropská úmluva o lidských právech. Komentář [The European Convention on Human Rights. Commentary]. C. H. Beck, Praha 2012, p. 390. 34 See dissenting opinion of Judge Ress to the ECtHR judgment in the above-cited case of Vo v. France , para. 3, or dissenting opinion of Judge Costa joined by Judge Traja to the same judgment, para. 14.

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