Embryo Protection in Penal Law

Extract

[...] This can lead to cases that are detrimental to it. II. The absence of a legal status or the harm to people yet to be born This absence results so far from the will of the Court of Cassation and the legislator to pronounce themselves outside the current applicable penal framework This can lead to a dichotomy between the attack on the life of the embryo and the right to life A. The refusal of the judiciary and the legislature to pronounce on the status of the embryo In penal law, legal personality only exists at the moment of birth and that is why the death of an embryo or a fetus in utero is not penal reprehensible On June the Court of Cassation stated that « the principle of the legality of crimes and penalties, which imposes a strict interpretation of penal law, is opposed to extending the incrimination provided for in Article 222-6 of the Penal Code, which punishes involuntary homicide on another person, to the unborn child, whose legal status is governed by specific texts on the embryo and the fetus. [...]

[...] Despite this legal vacuum, the question remains as to whether in criminal law the embryo has certain rights and protection and under what conditions these can be exercised. Firstly, it is necessary to examine how penal jurisdictions and the law protect the embryo And to note that a protection, however relative, does not conceal the legal vacuum surrounding the penal status of the embryo (II). I. The Protection of the Embryo in Penal Law In penal jurisprudence, there is still no recognition of a particular status for the embryo, which explains the application of the principle of legality of crimes and penalties by penal jurisdictions The embryo, however, has protection in specific cases and under strictly framed conditions A. [...]

[...] However, the legislator or penal jurisdictions remain hesitant to expand the protection of the embryo. It is not a matter of creating rights, which falls under civil law, of applying penalties to the guilty. It is also likely because penal law does not only aim to sanction criminal cases and that sometimes accidents can occur. The absence of recognition of a legal personality to the embryo therefore allows for an adapted penal solution on very delicate issues involving accidents. The refusal to link the loss caused by the fetus and involuntary manslaughter also results from a desire to preserve individual freedoms by adapting the penalties that can be inflicted on them. [...]

[...] Anything that is not a person is a thing and therefore does not have legal personality. Before the birth of an individual, it is impossible to know whether it will be alive and viable, so it is impossible to know whether it will be able to acquire legal personality or not. Beyond the alternative person and thing, the issue at stake in the debates is whether the embryo should be treated as a person, a thing usable for purposes other than the birth of a child, or an intermediate category. [...]

[...] It would allow for adapting penal responses to the needs and realities of society. It is possible to conclude that in France, the highest judicial authorities are embarrassed about the question of the penal status of the embryo. This explains why judges are reluctant to expand the protection of the embryo in the absence of a legal text in its favor, at the risk of contradicting other rights and freedoms. The embryo therefore does not benefit from criminal protection if it is a matter of offenses protecting individuals. [...]