UNBORN CHILD. - A human being is capable of being the subject of rights from the moment of his birth. Nevertheless, quite apart from the debated question whether man's existence begins with birth or from the moment of his conception, the legal order, with a view to certain particular effects, also takes account of the human being not yet born, whether conceived or not conceived.
The condition of the unborn child received considerable elaboration in Roman law; in it regard is had to the time before birth with respect to the reservation of the right of succession on the ground of death, for the acquisition of the status of freedom and of citizenship, and for the privileges belonging to those who belong to the senatorial order.
The principle conceptus or nasciturus pro iam nato habetur is not, however, Roman, nor is it in accordance with the rules of Roman law; for regard is had to the time of conception only when this benefits the unborn child (D. 1, 5, 7; cf. also D. 50, 16, 231).
Roman criminal law displays no severe rigidity in this matter. It is the common opinion that abortion was regarded as a grave immorality, never as a crime against the unborn child. The Church, on the other hand, defended a new concept: with respect to the rights of the natural law, human nature itself, that is, the conceived human being, is the foundation of legal capacity. And as soon as the soul has been joined to the body, man already exists with all his natural rights.
The ecclesiastical writers of the early age recognized in abortion a crime against the life of the unborn child and condemned as a murderer anyone who had procured it.
Gratian in his Decretum maintains that he who procures an abortion before the soul has been joined to the body does not commit murder, whereas he is a murderer who procures an abortion if the conceived child has already been vivified.
The medieval jurists were agreed in holding that abortion as a sin is subject to spiritual punishment, and as a crime is subject to canonical and legal punishment.
An official treatment of this matter was elaborated by Sixtus V in the constitution Effrenatam (a. 1555), which aims to protect the life of the fetus, tam animatus quam inanimatus, that is not yet capable of extrauterine life. According to this constitution, the penalty imposed on the guilty of abortion is latae sententiae excommunication, whose dispensation is reserved to the Holy See; for clerics, the loss of all privileges, dignities and ecclesiastical benefices, as well as perpetual incapacity for the exercise of orders, deposition and degradation, so that the penalties imposed for lay homicide may be applied.
The discipline established by Sixtus V was moderated by the constitution Sedes Apostolica of Gregory XV (1531). In the latter a fundamental distinction is made between abortion of an animated fetus and abortion of an inanimated fetus. In the first case the penalties sanctioned in the constitution Effrenatam remain in full force; in the second case the Constitution of Gregory XIV refers to the provisions of the common law.
In the CIC the penalty to be applied in the case of abortion is latae sententiae excommunication. For the effects of this censure two things are required: that the abortion has really taken place; and that it has resulted from the means used for that purpose, and not from other circumstances. Thus, if a person has set in motion a cause efficacious in itself to procure abortion, but for any other reason the premature extraction of the fetus is prevented, that person does not incur this censure.
By this crime, moreover, one becomes irregular, one incurs the impediment ad ordines suscipiendos; clerics, furthermore, are struck by deposition. Finally, resolving an ancient question concerning the responsibilities of the mother, the CIC legislates that she too incurs the excommunication, provided she acts sciens volens.
The Church furthermore considers the condition of the unborn child, aiming at the good of the soul. For this purpose a grave obligation is imposed on parish priests to see to it that, when necessity requires, fetuses in the maternal womb are baptized, and in any case those unborn children who have only in part emerged from the maternal womb.
Italian law, following Roman law, protects in certain cases the rights of the unborn child, making his legal capacity retroact to the moment of conception. The rights, however, that the law recognizes in favor of the conceived child are subordinate to birth (Civil Code, art. 1). For the purpose of protecting the interests of the unborn child, the court may appoint a special curator (art. 339), if at the death of the husband the wife is pregnant. Moreover, the posthumous child is granted the possibility (art. 687) of giving cause for the revocation of dispositions by universal or particular title made by one who at the time of the will had no children or descendants, or was unaware of having them. The law also takes into consideration those not yet conceived, declaring them capable of receiving by will, provided they are children of a determinate person living at the time of the testator's death (Civil Code, art. 462, para. 3).
Criminal law too protects the position of the unborn child, when it imposes penalties on those who attack the life of the conceived child, by procuring abortion (v.) or by performing practices against procreation (Penal Code, arts. 545-55).
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Francesco Ercolani