‘Human-ness’ Of The Foetus: A Discourse On Rights Of The Unborn

‘Human-ness’ Of The Foetus: A Discourse On Rights Of The Unborn
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By Chidi Matthew Nwachukwu

How do we explain the theory that a foetus (an unborn child in a woman’s womb) is entitled to the same inalienable “right to life” as all other ‘already-existing’ human persons?


Does it make any sense to argue that a foetus in its mother’s womb should to be considered as a complete human being, and be accorded rights to inheritances even before it is born into this world?

Is it logical, appropriate or reasonable for a child to be born, and grow up, and then challenge legally the decision of his or her parents to bear him?

There are indeed lots of questions that have emanated from the discourse on whether or not an unborn child is entitled to equal rights as already existing humans, and these questions may never be completely answered since humans in their individuality, will always hold diverse opinions and views on controversial issues such as this.

The story of Evie Toombes, a 20-year-old disabled equestrian showjumper from the United Kingdom, comes in handy in analyzing and dissecting the subject of foetal rights and how they can be fastidiously enforced.

Evie was born with ‘spina bifida,’ a medical condition where a baby’s spine and spinal chord fail to develop in the womb, and it has been found that such a condition could be remedied through the use of vital folic acid and other supplements.

Evie, upon discovering that Dr. Philip Mitchell (the gynaecologist who was her mother’s medical attendant and adviser at the time of her birth) did not advise her against the risk of “wrongful conception,” sued him for causing her to be born in a ‘damaged state.’ She maintained that her mother would never have conceived her if she had been rightly advised. She added that the only likelihood that would have followed, if her mother had paused her plan to conceive her, was her (Evie) delayed birth.

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At the court, Judge Rosalind Coe blamed Dr. Mitchell for the high negligence he exhibited in failing to rightly advise his patient. She therefore, ruled in favour of the complainant and awarded her the sum she had claimed. The sum, according to foreign media, is “big” because it is expected to cover the cost of extensive care for her life.

Now, looking at Evie’s case, one would see a practical scenario where foetal rights were enforced. A foetus has the right to be born normal, and if anyone (including the mother) jeopardizes the foetus’ chances of being born healthy and normal, then such a person is to be prosecuted.

Medically, it is not advised for a pregnant woman to consume alcoholic beverages as this could cause the baby to be born with a condition known as foetal alcoholic spectrum disorder (FASD). FASD manifests in physical signs that include wide-spaced eyes, a smooth ridge between the nose and the upper lip, a flat nasal bridge, a thin upper lip, an upturned nose, among other signs.

Therefore, if a woman jeopardizes the life and health of her unborn child by consuming foods that are not congenial with the delicate nature of her foetus, then she will be liable for whatever harm that befalls her baby.

A very interesting and somewhat contrasting angle to this discourse is the stand of the United Nations (UN) on the matter. According to Jude I. Ibegbu, an International Laws expert, the international instrument on Human Rights is ambiguous on the issue of whether or not the unborn child is protected.

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He further stated that there is no explicit protection of the right to life of an unborn child, and for this reason, the upholding or otherwise of the rights of an unborn child is subject to the whims and choices of the distinct states that make up the United Nations.

Nigeria as a nation does not expressly uphold the rights of an unborn child even though it frowns against abortion, but many other countries have implemented laws that expressly uphold the rights of an unborn child, such as the right to inheritances and very importantly, the right to life.

For emphasis’ sake, the United Nation as an international organization, does acknowledge the human-ness of the unborn child, but unlike many of its member states, it does not categorically state whether a foetus in a woman’s womb is to be recognized as a human person that is entitled to all the full rights of a living being.

There are a lot of conflicts and controversies on the status of a foetus – whether it should be considered as human from the inception of its being, or whether it can statutorily be elevated only after a defined time. Opinions on the human-ness or otherwise of the foetus are as many as there are countries and peoples.

While some nation states hold the view that a foetus is to be considered as a human being from the very inception of its being, other nation states insist that a foetus becomes a human being only after 40 days when, according to medical prognosis, it must have acquired a soul.

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Article 1 of the Italian Civil Code, for instance, stipulates that the acquisition of legal capacity is possible only at birth, implying that an unborn child is not in any way entitled to any rights of its own, and that its fate is subject totally to the whims and caprices of its mother.

Therefore, by virtue of the above clause, a pregnant woman reserves the absolute right to either keep or terminate the child growing in her womb without being liable for offence.

In some other climes where the rights of an unborn child are not absolute, an abortion for instance, can be carried out only if the pregnancy puts the woman at the risk of losing her life, or if the birth of the child would spur up economic inconveniencies.

Then, many Central American countries such as Chile, Dominican Republic, Ecuador, El Salvador, Guatemala, Hungary, Honduras and Peru uphold the absolute right to life of an unborn child. In these countries, inheritances are reserved for foetuses even long before they are born. Thus, the foetus is considered a complete human being even from the first day of its conception.


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