Legal Protection Of Fetal Life Rights And Interests

Fetus as an independent form of life, has not exactly same rights with people born, but to some extent, it is the consensus of the world that the fetus should be protected by law. However, due to the dispute in legal status of the fetus personality, countries don’t usually make the same efforts to protect the rights of the fetus as ordinary people. So there exists a lot of practice against the rights and interests of the fetus, and the most serious practice are violations of fetal life rights and interests.Although countries can not reach an agreement on issues whether the fetus has life rights, the life of the fetus is a kind of separate legal interests with possible development of human dignity in legal theory. Therefore, for the need of the protection of human rights, theorists basically agree that life rights and interests of the fetus should be protected by law.Although China has currently established the constitutional principle "respect and protect human rights", it is difficult to find clear bases in the existing legal framework to protect the fetus. Therefore, there exists a lot of practice against life rights and interests of the fetus. In this context, this article, based on human rights spirit of the protection of life rights and interests of the fetus, is written. I begin to write this article from the old controversy problem whether the fetus is a person. After clarifying the relationship and difference through inter-related concepts, I make new interpretations about this problem. Through comparing the fetus legal personality status legislative model of various countries, I propose the unique perspective that fetuses have the "quasi-personality" status which is the legal basis of fetal life rights and interests. On this basis, by comparing legal regulations against two typical practice against fetal life rights and interests in different countries, the article provides a valuable advice how to protect fetal life rights and interests by legal means for our country in the current context. This paper is divided into five parts:The first part leads to the central issue of this paper. In this section, by analyzing two real cases of harming fetal life rights and interests, the paper leads the reader to think about fetal life rights and interests. I further summarize the current situation on the protection of fetal life rights and interests, finding the lack of legal protections, and discuss the need to protect fetal life rights and interests in the current context.The second part discusses the legal personality status of the fetus. Before discussing this issue, this paper demonstrated the pre-issue whether the fetus is a person. By distinguishing between different definitions of "person", the paper reasonably explain the problem. After the discussion of the pros and cons of four traditional views of the fetus legal personality status, the author proposes an academic point of view about "quasi-personality".The third part discusses the life rights and interests of the fetus on the basis of the second part. In this section, by comparing conclusions of relevant cases of the United States and Germany based on the principles of human dignity, I find a reasonable theoretical basis for fetal life rights and interests. Subsequently, I clarify two typical practices against fetal life rights and interests.The fourth part is the focus of this article. In civil law and criminal law perspectives, the paper analyzes and compares the different legal regulations against two kinds of violations of fetal life rights and interests between United States, Germany and China by the method of comparative law. Notably, this article is not the simple accumulation of data, but leads readers to think about legal principles by analyzing real cases. It not only makes the appropriate comparison from the surface of the judicial practice, but also analyzes and compares the cases on the basis of legal principles further.In the fifth part, I make an advice on how to protect fetal life rights and interests by legal means based on the fourth part. I first start from human rights spirit of the Constitution, to find the foundation of the Constitution to protect fetal life rights and interests. Subsequently, from the perspective of criminal and civil law, I propose legal regulations against two kinds of violations of fetal life rights and interests, which provide some suggestions for the effective protection of fetal life rights and interests.