TRIBUNE – Recent events have brought out of its sleep the forbidden question of the criminal protection of the unborn child in the field of road accidents. This question is not new. She seems unknown to many fellow citizens who have just expressed their incomprehension, and that is an understatement, following the recent fatal accident for a baby. This mediatized fact should force the company to open, again, this debate initiated more than 20 years ago, following a decision of 2001 of the highest French judicial court.
On July 29, 1995, an inebriated driver of a car swerved into the left lane and collided with an oncoming vehicle driven by a six-month-pregnant woman. Wounded, this mother gave birth prematurely on August 20, 1995 to a stillborn baby. The autopsy concludes that this unborn child was viable, but he had not lived due to serious brain damage directly related to the accident.
On June 17, 1997, the driver was found guilty of” manslaughter “ by the Metz Criminal Court. This driver is appealing. On September 3, 1998, the Metz Court of Appeal overturned this judgment and dismissed the incrimination of” manslaughter “ on the grounds that the stillborn child is not protected under criminal law for offenses relating to the ” person “.
To be considered a ” person “, the court requires the existence of a living being, that is to say, come into the world and not deceased. The court does not retain the” manslaughter “ that with regard to a child whose “heart beat at birth” et “I breathed”. The Attorney General and the civil parties (the baby’s family) lodge an appeal in cassation. But, on June 29, 2001, the plenary assembly of the court of cassation rejected this appeal: it confirmed the analysis of the court of appeal. It recalls that the application of the penal law is strict and that the legal regime comes under specific texts on the embryo or the fetus.
To try to understand this position of the highest French judicial court, it is indeed necessary to offer the public some useful non-exhaustive elements. Basically, the question that arises is the following: is a human person necessarily a legal person?
In French law, the human person does not acquire the ” juridic people “ only at the time of birth. It is only then that she acquires rights if she was born alive, even if only for a few minutes. This legal personality disappears with the death of the person. This position, concerning the criminal protection of the unborn child, raises many questions which call for urgent intervention by the legislator.
Is it acceptable that a few minutes of life can be the reason for discrimination between two children: the first stillborn; the second died some time after birth? And even though, in both cases, the accident occurred during pregnancy.
This parliament does not deny the human character of the unborn child (fetus, embryo). The beginning of life from conception is allowed. But he seems to avoid saying what an embryo is and noting its nature; by taking refuge behind divergent opinions, subjective analyses, the beliefs of each other. He refuses to clarify this nature, probably for fear of seeing some people questioning, in particular, voluntary pregnancy intervention (abortion) and research on the embryo.
Such a fear should be evacuated with regard to the special texts which protect these interventions derogating from the principle which protects the human being from the beginning of life: from the embryo. These exceptions (abortion and research on the embryo) are authorized by law, because they are considered to pursue a higher interest than that of the embryo. Moreover, they are not the only derogations of possible harm to life and human dignity: medical termination of pregnancy (IMG), self-defense are other examples.
This silence of deputies and senators leads to many contradictions and uncertainties concerning the status of the unborn child and its criminal protection.
How to explain that this unborn child, alive and viable in the womb of its mother – in utero – is not protected by the incrimination of manslaughter; while other criminal offenses protect it directly or indirectly, as for example in the following cases: medically assisted procreation, research on the embryo, illegal termination of pregnancy, aggravating circumstances during voluntary offenses targeting the pregnant victim (murder , rape, etc.)?
How to maintain that this unborn child, full of life, is not protected by this incrimination of manslaughter; while a corpse is protected? Indeed, the author of an intentional homicide attempt on a person already dead (whom he believed was still alive) is punishable by criminal law.
How to justify the exclusion of this unborn child from this criminal protection; while the civil code grants him rights, even if he was born lifeless?
How to convince parents by explaining to them that their baby is not a legal person; when his mother felt him move inside her, when his father and mother saw him as a fully formed miniature human being thanks to advances in medical imaging?
How can the viability criterion be defined with certainty in view of progress in medicine, in particular resuscitation, which is increasingly pushing back the thresholds of this viability (despite the definition of these thresholds by the World Health Organization)?
How can we accept that this unborn child is not considered “other” ; given that article 221-6 of the penal code which punishes manslaughter speaks of “the death of others” ? What means “other” : a legal person, a human person, an anatomical piece, surgical waste, property, a thing? Crimes against property are also punishable by the penal code. How to accept this lack of consideration with regard to the unborn child, his family, his loved ones? While this article “221-6 of the penal code” falls under the following classification:
“Book II: Crimes and Misdemeanors against Persons
Title II: Attacks on the human person
Chapter I: Attacks on the life of the person
Section 2: Involuntary attacks on life »
How to fight against traffic crime with such an ambiguous situation?
Such contradictions and inconsistencies would mark the malaise of the legislator. The latter should however make his conception of Man intelligible. No higher interest prevents the representatives of the people from criminally protecting prenatal life and ensuring that a driver can fall under the law punishing manslaughter. Doctrine and judges invite us to do so. Two solutions are possible: integrating the embryo into the category of persons within the meaning of the penal code; or recognize the benefit of this protection by a special provision (which derogates from the general provisions).
In times past, slaves, though human beings, also lacked legal personality. Criminal law is there to protect life from its very beginning. The human being cannot be sacrificed by a legal concept or fiction.
The unborn child is intrinsically human. It suffices for the law to state this. And in case of doubt about its nature, the embryo, at least this unborn child, should be considered as a human person.
It is up to parliament to take up this question quickly; and open the debate.