NASCITURO. – Man is capable of being the subject of rights from the moment of his birth. However, irrespective of the much-debated question whether man’s existence begins with birth or already at conception, the legal order, with a view to certain particular effects, also takes account of man who has not yet been born, whether conceived or not conceived.
The condition of the n. underwent considerable development in Roman law; in it, the time prior to birth is taken into consideration with regard to the reservation of the right of succession mortis causa, the acquisition of the status of freedom and citizenship, and 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 does it correspond to the rules of Roman law; for the time of conception is taken into consideration only when this benefits the n. (D. 1, 5, 7; cf. also D. 50, 16, 231).
Roman criminal law does not display strict severity in this matter. It is commonly held that abortion was regarded as a grave immorality, never as a crime against the n. The Church, on the other hand, defended a new concept: with regard to the rights of natural law, human nature itself—that is, conceived man—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 period recognized abortion as a crime against the life of the n. and condemned as a homicide anyone who procured II.
Gratian, in his Decretum, maintains that he who procures an abortion does not commit homicide before the soul has been joined to the body, whereas he who procures an abortion is a homicide if the conceived child has already been vivified.
Medieval jurists were unanimous in holding that abortion, insofar as it is a sin, is subject to spiritual punishment, and insofar as it is a crime, is subject to canonical and legal punishment.
An official treatment of this matter was formulated by Sisto V in the constitution Effrenatam (a. 1555), which seeks to protect the life of the fetus, tam animatus quam inanimatus, that is not yet capable of extrauterine life. According to this constitution, the person guilty of abortion is subject to excommunication latae sententiae, dispensation from which is reserved to the Holy See; clerics incur the loss of all ecclesiastical privileges, dignities, and benefices, as well as future incapacity to exercise orders, deposition, and degradation, so that the penalties imposed for lay homicides may be applied.
The discipline established by Sisto V was moderated by the constitution Sedes Apostolica of Gregorio XV (1531). The latter makes a fundamental distinction between abortion of an animated fetus and abortion of an inanimate fetus. In the first case, the penalties sanctioned in the constitution Effrenatam remain fully in force; in the second case, the Constitution of Gregorio XIV refers to the provisions of common law.
Under the CIC, the penalty to be applied in the event of abortion is excommunication latae sententiae. For the purposes of this censure, two things are required: that the abortion actually have occurred, and that it have resulted from the means used for that purpose, rather than from other circumstances. Thus, if a person has set in motion a cause in itself effective for procuring an abortion, but for any other reason the premature extraction of the fetus is prevented, that person does not incur this censure.
For this crime, moreover, one becomes irregular and incurs the impediment ad ordines suscipiendos; clerics are additionally subject to deposition. Finally, resolving an ancient question concerning the mother’s responsibility, the CIC legislates that she too incurs excommunication, provided that she acted sciens volens.
The Church also takes account of the condition of the n., with a view to the good of the soul. For this purpose, parish priests are under a grave
obligation to ensure that, whenever necessary, fetuses in the maternal womb are baptized and, in every case, those n. who have emerged only partially from the maternal womb.
Italian law, following Roman law, protects in certain cases the rights of the n., retroactively extending legal capacity to the moment of conception. The rights that the law recognizes, however, in favor of the conceived child are conditional upon birth (Civil Code, art. 1). In order to protect the interests of the n., the court may appoint a special guardian (art. 339) if, upon the husband’s death, the wife is pregnant. The posthumous child is also granted the possibility (art. 687) of giving rise to the revocation of dispositions by universal or particular title made by a person who, at the time of the will, had no children or descendants, or was unaware that he had them. The law also takes into consideration those not yet conceived, declaring them capable of receiving by testament, provided that they are children of a specified person living at the time of the testator’s death (Civil Code, art. 462, para. 3).
Criminal law likewise protects the position of the n. by imposing penalties on those who attack the life of the abortion (v.) or performing practices directed against procreation (Criminal Code, arts. 545–55).