Module232025

07/05/2025

Foetal “rights”

• The foetus lacks legal personality until it is born – maternal rights are supreme. Exception used to be Ireland (dentist case, Savita Halappanavar) – law “suggested” that pregnant woman and foetus had equal rights, hence position on abortion • Courts have created the “crystallization” concept to enable recovery of damages for iatrogenic- teratogenic injury. The harm “crystallises” upon live birth. Death in utero – the harm did not “crystallise” in an entity with legal personality – mother has to seek damages through other routes.

• Foetus has an “interest” to be born UNinjured.

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Maternal “rights”

Through the 1990s the notion that pregnant women were vulnerable or decisionally-impaired was increasingly challenged in the law courts. In most countries now, the Courts intervene only: where a pregnant woman’s decision is so irrational as to constitute a psychiatric condition (e.g., needle phobia), or will result in an irreversible consequence (e.g., Jehovah’s Witnesses and blood transfusion). Legislation in many US states permits the imprisonment of women to prevent their undertaking activities considered to pose a risk to the foetus. The majority of states in the USA have enacted legislation which render as criminal activities anything that could endanger foetal survival or development Most commentators now refer to pregnant women as a “complex” rather than vulnerable population – except Article 10 of the CTR

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