Unborn fetus or human unborn: Paradigms of legal homogeneity

The American Convention on Human Rights is the only international human rights document that explicitly attributes the label of person to the fetus and therefore grants certain rights and freedoms to the unborn child. It has done so through Article 4 which states that "the right to life of every person shall be protected by law and, in general, from the moment of conception". In the "Baby Boy" case, the Inter-American Commission on Human Rights (IACHR) clarified that abortion is allowed under the ACHR.

On the other hand, the Universal Declaration of Human Rights does not recognise a fetus as a person. Additionally, the European Convention on Human Rights is silent on the issue although the courts in Vo v France indicated that they might in future interpret the provisions within ECHR to offer protection to a fetus where necessary (Smith and Hogan, 2015).

The purpose of this article is to determine the extent to which the UDHR and ECHR should follow the approach introduced by ACHR and thereby extend the definition of personhood contained in their respective provisions to the fetus. 

The overwhelming dominance of the Born-Alive rule throughout the world when UDHR and ECHR were drafted has been widely cited as one of the main reasons for which rights were not given to fetus under the aforementioned documents. The Born-Alive rule simply means that a child should only be granted rights under the law of a country when it is born alive as until then it can only be seen as a part of its mother.

However, with the rapid advancement of medical science, the flaw in the rationale underpinning this widely used rule became apparent and consequently, the life from the moment of conception approach followed by ACHR has been adopted by many countries that previously followed the Born-Alive rule. 

Lord Mustill in Attorney General's Reference No. 3 of 1994 even labelled it as an outdated and misconceived legal principle on the ground that in modern times, in presence of an overwhelming amount of evidence that can be adduced to prove otherwise, it will be wrong to describe a fetus as a part of the mother. Likewise, in Winnipeg Child and Family Services v. V.G. (D.F.), Major JJ stated in his dissenting judgment that the development of technologies like fetoscopy should lead the law to abandon this irrational rule. C Morris very correctly pointed out in "Technology and the legal discourse of fetal autonomy" that, "with the development of technology, the fetus is gradually taking on a human form in the utero before our eyes".

Indeed, with the rapid development in medical science, modern research suggests that a fetus shows five vital signs of life in the womb such as heartbeat, brain waves, independent movement, senses, breathing, and is capable of surviving outside the womb from as early as 22 weeks (Carol K. Sigelman and Elizabeth A. Rider, 2014). 

There are many recent examples of cases including ABC v St George's Healthcare NHS Trust (2020) where courts have shown strict adherence to the Born-Alive rule, which arguably led to unfair outcomes. Therefore, the first reason why the UDHR and the ECHR should follow the approach taken by the ACHR with regard to the legal status of the fetus is that it will compel the Member States to adopt a rather modern view that is supported by medical evidence as opposed to a backdated one devoid of any proper logical reasoning and thus avoiding injustice in future cases.

The second reason relates to the prevention or reduction of intentional acts of prenatal alcohol and drugs abuse for it is well documented that prenatal exposure to drug and alcohol can cause many health hazards including fetal death, fetal alcohol syndrome, and alcohol-related neurodevelopmental disorder with thousands are affected by them every year. For instance, a 2017 study conducted by the centre for addiction and mental health found that approximately 119,000 children are born with fetal alcohol syndrome worldwide every year.

Thirdly, in many member states, the law relating to violence against pregnant women has been reported to be of unsatisfactory quality. UDHR and ECHR member states following the Born-Alive rule have been severely criticised for punishing defendants with manslaughter instead of murder even in extreme situations such as in Attorney General's Reference No. 3 of 1994 where the act of a husband stabbing his pregnant wife led to premature birth causing the death of their child. 

If the approach of ACHR is accepted by UDHR and ECHR, then such member states will be under an obligation to protect the fetus's right to life. It will encourage them to implement stricter laws to prevent violence against pregnant women. Thereby, UDHR and ECHR will be able to play a crucial role in saving thousands of pregnant women throughout the world from gruesome acts of violence. 

To conclude, it can be regarded as common ground between nations that embryos/fetuses belong to the human race, its potential and capacity to become a person require protection in the name of human dignity (Sattar, 2020). Regarding abortion, a total prohibition should not be endorsed by UDHR and ECHR (much like ACHR) because it does not offer enough protection for the right to life of pregnant women and girls and may also breach the provisions on privacy. Thereby, this should come with exceptions as best suited in circumstances where needed. An example of this may be where it is necessary to save the mother's life. In this respect, it is worth bearing in mind that the Dublin Declaration on Maternal Health states that "there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child". Another may be where the pregnancy has been caused by a sexual crime such as rape. However, it should be taken into consideration that the exceptions should not be so broad and widely used that the purpose of the ban is hampered in any way. 

Dr MD Parvez Sattar is a faculty at the Department of Law, Independent University, Bangladesh.

Barrister Mariha Zaman Khan is an Advocate of Dhaka District & Sessions Judges' Court.

Arafat Reza is an LLB graduate of BPP University, UK.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.