The Rights of the Unborn Child and Artificial Procreation
1. The Executive Council of the Centre for Bioethics and Human Rights of the
University of Lecce has already made its position clear regarding the rights of
the unborn child; in fact, following a seminar in July 1994 to which academics
of different religions were invited, the Council drew up a Declaration of the
Rights of the Unborn Child and put it forward for consideration to the
Italian Government and Parliament, also in view of the World Conference on
Population and Development which was due to take place in Cairo (Sept.
The idea came about after having considered the fact that whilst there have
been Declarations for the Rights of the Young Child (1959), for the
Elimination of Discrimination against Women (1967), and for the Rights of
the Mentally Disabled (1971) there has still been no Declaration to
Uphold the rights of the Unborn Child.
In this way we have arrived to formulate this document that deals with the
problem of the unborn child from an ethical and political-juridical point of
view, different from that of the previous documents as for example the
Identity and Status of the Human Embryo (1989) of the Catholic University of
the Sacred Heart, which rather follows an ethical-religious and biological
2. Having considered the reasons why the Declarations mentioned have been
drawn up, namely to defend the rights of the individual in the period or the
status of his/her life which is most open to abuse, it is concerning that
today still no Declaration has been passed. Nevertheless, the life of an unborn
child is unique and individual, it has the same identity and the same
substantial continuity, and as such is untouchable, from the moment of
conception right up to its natural death.
What is of concern, comes from the fact that, whereas in those Declarations
which have already been passed, the starting point is the individual with his
personal rights, regardless of whether the individual is a new-born baby, a
young child, an adult, an old person, a healthy person or a sick one, the
starting point for a life which is still inside the mother's womb is no longer
the individual with his own personal rights, but rather the couple (sometimes
the single mother), with its particular wishes. In short, a human life inside
the womb, is not protected enough, despite it being the life of a human being;
in the first part of its life, the fate of the unborn child is sometimes left to
the free decision of the woman, at other times, on the other hand, it is
protected simply because it is deemed to be socially opportune or even useful to
In conclusion, what is of concern is the fact that when there is a difference
of opinion involving two living individuals, the respective rights of both
people in question are carefully taken into account. In the case of a contrast
between qui in utero est and
qui iam natus est the same examination is not made.
3. The reason that different values are given to life inside the womb and to
extracorporeal life in the modern legislation of many states lies in the fact
that the term "biological individual" is split into "human being" and "person".
This split is made possible, by the "legal capacity" which the person identifies
himself with. It is precisely this use of the category of legal capacity, in
positive law, that makes it possible to recognize the personal status of
beings who are different from the biological individual, and some biological
individuals continue to be denied their legal capacity (Savigny).
In this way two levels of the human being are created: the biological and the
legal one. The latter is created by means of an artificial process of
superimposition, which is not regulated by ethics. As a consequence some
homines nondum mortui (civil death) and also homines nondum nati
(the unborn child) are denied person status.
Looking at it more closely, we can see that re-elaborated Roman law is at the
base of this process. This modification is carried out under the influence of
the German "Pandectian" discipline on the one hand, and on the other hand under
the influence of "the patrimonial aspect of civil law".
On the other hand, following directly the Roman classic and Justinian law,
and the Iberian tradition, "conceived embryoes are usually included in
Latin-American law codes as subjects which have legal status (Busnelli)". In
this way devising artificial legal rights for conceived embryoes are useless.
This is because its aim is to satisfy the requirements of "the legal and
patrimonial traffic", and to protect the estate and the rights which will go to
the unborn child once he is born, rather than concerning itself with protecting
life within the womb,
We can find confirmation of the fact that it is in vain, in the
above-mentioned doctrine, which has been in existence in the Latin-American
legal system since the last century. This system "wanted to use the term
person to defend the human being right from its conception", and in this way
it puts great importance on the principle of "ontological parity between an
unborn child and one that is born in contrast to a singular legislative
4. What the ethical, political and legal community cannot accept are
the results which have been achieved in Biology for quite some time. What is
incomprehensible, at least initially, is the reason why the unborn child, which
is considered as a real human being by Roman Law, is not considered in the same
way in modern times as well.
The identity of the human embryo which continues right through the different
phases of its development (zygote, morula, blastula, pre-embryo, embryo, foetus)
in spite of showing a progressive differentiation of its organism, is accepted
"more" by the Assembly of the European Council and Parliament (eg.
Recommendations no. 1046 of the 24th September 1986 and no. 1100 of the 2nd
February 1989; Resolution A2-327/88, A2372/88 of 16.3.1989) than by the
single nation states (even if there are exceptions).
Those countries which are institutionally obliged to defend life inside the
womb, are more reluctant to accept the results of research into it which have
been obtained by the Scientific Fraternity. In fact states, which are
driven on by economic interest and by a hedonistic culture, often end up
considering the embryo in its first few months of life as a "something" to be
catalogued along with other patrimonial rights and not as an individual with its
On the other hand, if we take into account, the scientific results obtained
by the Community of Biologists and consider the fact that not only is human
nature equal for every man, but that it is also equal for every man from the
moment of his conception right up to his natural death, there is no denying that
each human being has an ontological composition which carries with it rational
values, ethics and therefore personal rights. It is undeniable that in each
individual's DNA there is the plan-project for his gradual autonomy and
self-realization right from his conception, and although this program takes
place over a period of time, it continues to have its own substantial identity
and continuity. In short, one can say that each individual has his own
particular nature or essence, and that each essence has a natural law which
regulates his respective basic rights. By carrying these out, individual
development and existence are fulfilled in their substantial and social
5. The main problem is to establish whether the embryo, as an individual
essence, can be known by using a rigorous, logical process, and if the norms by
which its life can be protected, can be deduced from its scientific description.
Not all philosophies agree on how to deduce norms from an individual essence
which is teleologically orientated towards life. It is these norms which have to
regulate its existence and its development. In this way, analytic philosophy
even when it abandons the logic of decisionism and moves towards the logic of
the rational foundation of principles, backs up the theory that this type of
foundation comes from a kind of programmatic rationalism where reason and not
nature has a fundamental function.
On the other hand, it is possible to admit, as those advocates of the
restoration of Aristotle's practical philosophy have done for twenty years, that
it is logically correct to suggest that norms and laws regarding the development
of life, derive from the description and comprehension of an individual essence
which is teleologically orientated towards life out of the womb. It is
scientifically correct to pass from the ontological level of life within the
womb to the level of the gnoseological definition of the same life (Maritain).
Therefore it would not be justifiable to accept instead, that the mind was
absolutely autonomous from nature due to the consequences which are implied by
this autonomy. Hence natural data is accepted by human thought as the
irrefutable stages of orientation, which still "leave a certain space for free
convention" (Gadamer) when programs of personal and social life are to be
formed; these have to be coherent with their premises and with the laws which
can be deduced from the same premises with logical consequentiality. One can
clearly understand, therefore, the justification of the reasoning of those
people who, using the natural order of identity and the status of the human
embryo as their starting point, have unambiguously proposed for an ideal order
to be formed, to which human actions can be referred.
Beyond these various philosophies or ways of solving the problem of how to
deduce the ethical order from fixed points of nature, there should be no doubts
about the fact that behaviour which conforms to the order of the biological
statute of the embryo and to the laws regarding the stages of its development,
should be considered ethical behaviour. Behaviour which does not conform to this
on the other hand, should not be considered ethical.
As a consequence, the ideal order for artificial fecondation is just if the
actions that it provides for, follow the criteria of the natural order, and
correct it wherever necessary.
It is true that man is free to either respect or not to respect the ethical
order, but the effect of violating such an order, besides having consequences
for man himself, means that it also affects others and will have consequences
for future generations.
It is necessary to dominate nature for the dignity of the human being but at
the same time it is also necessary to remember that "one cannot triumph over
nature if one does not obey it" (Bacon). Otherwise, when nature is manipulated,
it rebels by dying, and by dying it means that humanity dies also.
6. If the laws of the processes of natural procreation can be known and can
be represented through the relative ethical order, it is consequential that the
ethics of those people connected with the health service should never deviate
from this order. Therefore they should correct nature, but they should
never manipulate it or take its place. This is also due to the fact that Science
illudes itself that it knows the natural order of procreation and of
ontogenetical processes, but in truth it only knows it in part.
Nevertheless not only do a large proportion of health workers as well as a
large part of the Scientific Community correct nature as part of their every day
reality, but they also compete in a continual race to try to mark out new
frontiers, and to replace the natural order of things.
In this way we end up with artificial procreation being proposed as a
substitute for natural procreation, sometimes offending nature (fecundation
after menopause) and on other occasions by completely substituting it
(artificial fecundation through the use of FIVET).
The pretension of the omnipotent scientist shows only few signs of restraint,
and is unable to regulate itself, respecting the scientifically proved
principles of nature.
7. It is therefore necessary to intervene with the aim of programming the
action of the legislator, and the action of sanctioning of the judge, because in
the health service one should work to correct but not to substitute the natural
order of procreation. One would hope that fecundation takes place in the uterus,
because that is the natural place where the individual's life begins; it is a
necessary condition of life for an embryo to be inside the uterus in order that
individual life be able to go on in its substantial continuity, just as the
substantial continuity of an individual is his birth. It is a human's right to
begin his life in the uterus and not in a test-tube.
The aim of the political order when regulating procreation techniques should
be to protect the rights of the unborn child to a far greater extent than has
been done up to now. The legislator should remember that the present legislation
of single states is generally inadequate in protecting the rights of the unborn
child and that each piece of positive legislation should be drawn up according
to the principles of the natural order.
8. Centuries old knowledge which has been founded on the natural order should
therefore be the basis for the legislator in all areas regarding artificial
procreation. As far as social relationships are concerned, conception should be
restricted to the married couple, which is a man and woman, who are both living
and who are both of a natural age of procreation. The insemination or
fecundation of a single woman should never be consented. It is the right of
every unborn child and of every infant to have two parents of different sexes
who are an adequate age to deal with the demands of the child's development
If we do not want to disturb the order and morality of the family, with
regard to artificial procreation, we should not look to manipulative fecundation
techniques which substitute the natural process, in particular if they imply by
the resorting to insemination or heterologous fecundation.
More specifically, in view of the ontological parity which exists between the
unborn child and the born baby, and as far as legislation is concerned, only the
therapeutical objectives of work into artificial procreation should be
It is to be hoped that the legislator resolutely decrees: 1) that such acts
of procreation should only be allowed for married couples with living partners,
because the connatural society when conception occurs, during pregnancy and when
a child is raised, is the family, 2) that resorting to them rigorously respects
ethical criteria of gradualness. In order to safeguard the natural and ethical
order of the family as well as that of rearing the child, it is nevertheless
necessary for the embryo to be the union (not in vitro) of the gametes of the
living married couple. If heterologous insemination or fecundation is resorted
to, then almost certainly the natural ethical order of the family as well as the
rearing of the child will be seriously disturbed. The causes of these ethical
problems are due to the fact that the embryo is either the fruit of the union of
the gametes of two donors who are unknown to the couple, or the gamete of one of
the two partners in the couple.
The consequences of this type of artificial procreation are that the unborn
child, as a human being with his own essential rights, is not protected. The
subject of law becomes an object of law for part of if not all of his life.
In this case he has become the object of the sterile parents' desire to have
a child. This desire which isn't deep-rooted within the couple, can in time be
denied. For this reason, it is possible that either the child or the unborn
child run the risk of not being recognized in spite of the fact of their parents
having given their consent to heterologous procreation.
(The official text is in Italian. Translation by Ian Gavin.)
Magisterium Teachings on Abortion