Nasciturus w świetle ustawodawstwa o przerywaniu ciąży
Nasciturus in the light of legislation on the termination of pregnancy

Summary/Abstract: The analysis of the rationale and evaluations of abortions does not enable a clear definition of the legal status of the human embryo-foetus. The legislator generally employs compromise solutions, taking into account different interests, as well as the need to protect different values. Also on an ethical level, there is no unified position on the moral status of a conceived human being. We meet both views which render the nasciturus completely relative against all other interests of the pregnant woman and interests formulated by specific groups, as well as the views which award a conceived being full rights of a human, similar to human rights after birth, with strict right to live, even at the expense of the mother’s life, first and foremost. More moderate positions on this issue differentiate the legal and moral status of a conceived being according to the degree of prenatal development and therefore according to the pregnancy duration. Doubts regarding the status of the nasciturus as a person, especially in the legal meaning, are justified. It is also an empirically proven fact that human development begins from the zygote and runs towards an increasingly developed, separate human being until the birth of a child capable of “independent” life outside the mother's body. It is difficult to say that throughout its development in the womb the embryo-foetus has legal subjectivity, but it also cannot be granted at a certain time (pregnancy stage) and taken away at another (even in the first weeks of pregnancy). The legislator, taking into account the future rights and interests of the nasciturus (e.g. in the inheritance law, compensation law, etc.), does not designate a certain stage of its development at which these rights arise, but the rights rather apply to the entire period before the human being is born. These rights are conditional, just as the legal subjectivity (legal capacity), which the legislator sometimes generally also grants to the conceived being. This condition is expressed in the legal norm and concerns the fact of the birth of a living child (conditio iuris). It is only from that moment that a person fully and unconditionally acquires rights and obligations, and the legal capacity of the nasciturus itself is aimed at the future effectiveness of the legal event for the child after its birth.Leaving aside the dispute of the lawyers about the legal capacity of the nasciturus, one cannot remain indifferent to the way in which the aforementioned condition is implemented. It is also worth pointing out that the very condition of being born alive is obvious, since, also in the natural order of things, not every pregnancy, for various reasons, ends in the birth of an alive child. A different assessment of the fact and its consequences concerns natural miscarriage due to causes inherent to the body of the woman, due to a random accident, or finally, due to an illegal act of a third party. The fulfilment of the discussed condition should be assessed differently in the situation of a free decision of the mother-to-be to keep the pregnancy, and thus her “permission” for the continued life of the embryo-foetus, or to reject it. In this way, the woman herself, usually bypassing the father of the conceived child, decides whether the condition of birth will be fulfilled. This approach of the legislator implies the objectification of the conceived being as a “part” of the mother, which only she freely decides about. However, no person can demand that a doctor should remove a healthy body part if the procedure has no therapeutic purpose. Consequently, it can be concluded that the normative solution of abortion in the form of the so-called “term model” means that a conceived human being at a certain stage of pregnancy is not entitled to human rights, in particular the right to the protection of life. A similar conclusion can perhaps be drawn in the case of the permissibility of abortion on eugenic grounds. However, the harshness of such an assessment is mitigated by consideration of the “quality” of life of that being after the birth, if we are certain that it will be a human being with severe retardation, a disfigured being, etc. At a time when the “benefits” and legalisation of euthanasia begins to be officially considered, it is easier to come to terms with the permissibility of abortion in the circumstances indicated above. However, such a decision can only be made by the parents of the conceived child, and under no circumstances can a rationale mandating an abortion be created. The prognosis of medical practitioners may be wrong or exaggerated, wherein the resulting psychological conflict (family dilemma?) should be resolved by the concerned parents, not just by the woman herself. However, her position should be taken into account first and foremost.On the other hand, the permissibility of pregnancy termination on the grounds of risk to the life and health of the mother does not lead to the conclusion that the embryo-foetus is not a human being. In such a case, the choice to protect “qualitatively similar” values is made.It is not easy to formulate one general conclusion with a firm statement on the legal and moral status of the human foetus. Since pregnancy termination and therefore the interruption (annihilation) of human life before birth is legalised, while invoking the need to protect values ranked lower than human life in the hierarchy of values, it cannot be said that a single coherent conception of the humanity of the foetus is adopted. However, it is difficult to agree with the idea that the concept of human beings can be graded. It is worth noting here that a new act regulating the permissibility of pregnancy termination in Poland does not specify the pregnancy term, during which abortion is permissible on any grounds, at all. Does this imply that the legislator intended to grant the nasciturus a uniform status from the conception to birth? It seems that the answer should be affirmative. One thing is certain, namely: the so-called term model of pregnancy termination permissibility, in which the nasciturus is treated as an object at the disposal of the pregnant woman, has been rejected.

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