CYIL vol. 11 (2020)

PETR ŠUSTEK CYIL 11 (2020) law, legal personality (and, therefore, the capacity to bear rights, including the right to life) does not exist before birth. For civil law purposes, the term birth in legal sense denotes the moment when the child is extracted from the mother’s body. In criminal law, the moment of birth probably takes place a little earlier, i.e. when the leading part of the child starts to leave the body of the mother. From the perspective of positive law, it would, therefore, be difficult to argue that the unborn child before the moment of birth has the right to life. However, the relevant legal regulation and case law on both Czech and European level suggest that the approach to unborn human life is gradualist. It means that the embryo and foetus are seen as acquiring ever stronger legal protection as their cognitive, sentient, and other functions are developing during the pregnancy. This can be deduced from a number of facts. The Charter of Fundamental Rights and Freedoms claims that the “[h]uman life is worthy of protection even before birth” ; there is a gestational limit for abortion on request while illicit abortion is criminalised; and the case law of the Czech Constitutional Court, as well as the ECtHR, clearly differentiates between the significance of interests of an embryo on the one hand and a foetus in the course of childbirth on the other hand. The childbirth is a transitional process between life in utero and the separate life outside of the mother’s body. Based on the gradualist approach, it can be argued that the status of the child in the course of childbirth is also transitional, i.e. that it is positioned between the status of a foetus and the status of an already-born person. Therefore, we believe that the interests of the child in the above-outlined situation can override the mother’s right to autonomy and justify the medical intervention as long as it is necessary and proportional to the aim of saving the child from the immediate danger of death or disability. In certain cases, carrying out the intervention might even be less risky from the legal perspective.

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