A foetus during labour is legally a human being

In an interesting decision issued in January 2019 (sentence no. 27539), the Italian Court of Cassation addressed the issue of infanticide and procured abortion (culpable abortion), making a revolutionary differentiation that could have important future implications from both legal and bioethical points of view.

The Court of Cassation had been called to rule against a midwife who had been accused of murder because as a result of her conduct, she had caused the death of a foetus during labour. Specifically, the midwife had not adequately monitored the cardiotocography track showing signs of foetal distress in a woman in labour. In fact, the child was born dead; subsequent forensic investigations confirmed that the foetus had died during labour due to asphyxiation.

The judges stated that it was not possible to speak of the crime of culpable abortion but of a real crime of culpable homicide:

… the living infant is no longer a foetus, either in the biological sense, or in the legal sense, but a person. And so, if in a delivery, naturally or provocatively immature, the infant is a living being, his voluntary killing constitutes homicide whatever the duration of the gestation.

The Supreme Court has therefore confirmed that one can no longer speak of a foetus when labour has begun and the child is alive, but rather one must already define that individual legally as a human being.

The basic concept is that if the foetus has reached full maturity and labour has commenced, it is assumed it has complete autonomy, and therefore anyone who interrupts the physiological process of birth can be convicted of homicide and not abortion.

This is an important stance that attempts to answer the bioethical and legal questions that continue to arise. When does the product of conception become a human being? When do the legal rights of the foetus begin? The question ‘what makes a person?’ does not have a definitive answer. In the international literature, there are many conflicting opinions – it is not unclear where the boundary between potential and real human beings sits and therefore what their respective rights are.

Moreover, today, according to Italian law, we speak of ‘birth’ when two fundamental elements apply: the expulsion of the foetus from the uterus of the mother and the completion of at least one respiratory act. It is assumed therefore that with the birth, the foetus becomes a human being (from a juridical perspective).

Despite this concept of birth, the judges of the Supreme Court of Cassation took the view that a foetus – while still in the mother’s uterus and before breathing has ever occurred – is a human being. They also convicted a midwife of homicide, rather than culpable abortion, after her conduct prevented the birth of a living child.

Establishing when a foetus becomes a human being with all its rights, including the primary right to life, is of crucial importance. The regulation of abortion will also have to be made on the basis of the persisting bioethical issues that remain the subject of debate throughout the world.