NASCITURO. — A human being becomes capable of being the subject of rights from the moment of birth. Nevertheless, irrespective of the much-debated question whether human existence begins with birth or already with conception, the legal order, in view of certain particular effects, takes account also of the human being not yet born, whether conceived or not.
The status of the nasciturus 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 upon death, for the acquisition of the status of freedom and citizenship, and for the privileges pertaining to those belonging to the senatorial order.
It is not, however, Roman, nor in conformity with the rules of Roman law, the principle that the conceptus or nasciturus is held to be already born; for regard is had to the time of conception only when this benefits the nasciturus (D. 1, 5, 7; cf. also D. 50, 16, 231).
Roman criminal law does not display in this matter strict severity. It is a common opinion that abortion was considered an offence against morality, never as a crime against the nasciturus. The Church, instead, defended a new concept: in accordance with the rights of natural law, the very human nature, that is, the conceived human being, is the foundation of juridical capacity. And as soon as the soul is united to the body, the human being exists already with all his natural rights.
The ecclesiastical writers of the early age recognized in abortion a crime against the life of the nasciturus and condemned as a murderer whoever procured II.
Gratian, in his *Decretum*, maintains that one does not commit murder who procures abortion before the soul is united to the body, whereas he who procures abortion, if the conceived being is already vivified, is a murderer.
Medieval jurists were unanimous in holding that abortion, as a sin, is subject to spiritual punishment, and as a crime, to canonical and legal penalty.
An official treatment of this matter was elaborated by Sixtus V in the constitution *Effrenatam* (a. 1588), which aims to safeguard the life of the foetus, whether animated or inanimate, that is not yet capable of extrauterine life. The perpetrator of abortion, according to this constitution, incurs latae sententiae excommunication, the dispensation of which is reserved to the Holy See; for clerics, the loss of all ecclesiastical privileges, dignities, and benefices, as well as future inability to exercise the order, deposition, and degradation, so that the penalties inflicted upon lay murderers may be applied.
The discipline established by Sixtus V was moderated by the constitution *Sedes Apostolica* of Gregory XV (1621). In the latter a fundamental distinction is made between abortion of an animated foetus and abortion of an inanimate foetus. In the first case the penalties sanctioned in the constitution *Effrenatam* remain fully in force; in the second case Gregory XIV’s constitution refers to the provisions of common law.
In the *Codex Iuris Canonici* the penalty to be applied in the case of abortion is latae sententiae excommunication. For the application of this censure two things are required: that abortion has actually taken place; and that it resulted from the means employed for that purpose, and not from other circumstances. Thus, if a person has placed an efficient cause to procure abortion, but for any other reason the premature extraction of the foetus is prevented, he does not incur this censure.
For this crime, moreover, one becomes irregular, incurs an impediment to receiving orders; clerics, furthermore, are liable to deposition. Finally, resolving an ancient question regarding the responsibility of the mother, the *Codex* legislates that she too incurs excommunication, provided she does so knowingly and willingly.
The Church moreover considers the condition of the nasciturus, aiming at the good of the soul. To this end parish priests are under grave obligation to ensure that, where necessary, foetuses in the maternal womb and in any case those nascituri who have only partially emerged from the maternal body be baptized.
Italian law, following Roman law, safeguards in certain cases the rights of the nasciturus, retroactively extending juridical capacity to the moment of conception. The rights, however, that the law recognizes in favour of the conceived being are dependent upon birth (Civil Code, art. 1). To safeguard the interests of the nasciturus, the tribunal may appoint a special curator (art. 339) if, at the death of the husband, the wife is pregnant. Moreover, posthumous children are granted the possibility (art. 687) of causing the revocation of universal or particular dispositions made by one who, at the time of the testament, 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 testament, provided they are children of a determinate person living at the time of the testator’s death (Civil Code, art. 462, para. 3).
Penal law also safeguards the position of the nasciturus, when it imposes penalties upon those who attack the life of the conceived being by procuring abortion (v.) or by performing practices against procreation (Penal Code, arts. 545–55).