A new path to protect the life of the nasciturus following the Constitutional Court Ruling of May 9, 2023: the Civil path

Abstract

This work aims to provide a new way to defend prenatal life by reinterpreting articles 29 and 30 of the Código civil after the Ruling of the Tribunal Constitucional of May 9, 2023, which has corroborated the constitutionality of Law 2/2010, of March 3, sexual and reproductive health and voluntary interruption of pregnancy. The new proposal consists of considering the unborn child as a person, that is, endowed with legal personality in light of the following idea: the requirement of live birth for the acquisition of personality is based on the scientific knowledge of the time in which the Roman law considered the nasciturus as part of the viscera of the woman, who gained human status at birth. Today this requirement is anachronistic and maintains in force a legal fiction consisting of considering the unborn a living human being, but not a person. The conceived is not a person from a legal point of view because it is the law that determines who is a person based on an essential requirement: being born alive. However, once he is born alive, his personality is recognized retroactively from when he was conceived. The only reason to be able to consider this requirement as coherent is the need for legal certainty, considering the following statement as irrefutable: if he is born alive, it means that he has been alive since he was conceived. This inevitably leads us to consider that if it is possible to verify that it is alive in the womb, it can and should also be granted legal personality before being born. The maintenance of this requirement has been due to issues of legal security - security regarding the current life of the conceived child - which do not apply today. Since earlier times, the requirement has been maintained by inertia, never questioning its content. However, we already know the genetic and biological individuality of the conceived child, so maintaining the validity of this requirement today is due not to legal reasons but merely ideological ones.