Źródła koncepcji podmiotowości prawnej nasciturusa

Abstract

The legal status of the human embryo has always been recognized on the basis of current medical knowledge. In the ancient cultures of the Middle and Far East, all conception-related aspects were linked to divine activities and regarded as so magical in nature that they could be adequately expressed only in mythological language. In ancient Mesopotamia, children were completely subordinated to the will of their father, who could freely punish or even sell them. In such a legal system, the foetus enjoyed hardly any protection. Under Hittite law, premeditated miscarriage was punishable by a fine whose amount dependent on the degree of foetal development. The Assyrian law code provided that the status of the nasciturus was a state value and deliberate miscarriage was regarded as a crime against the state and punished with a fine or whipping. However, none of those societies recognized the embryo as a living entity. Neither did ancient Jewish communities regard the nasciturus as a human being – it was only after birth that a child acquired the status. The Hellenic world also treated the nasciturus as an object and the practice of abortion was commonplace there. Ancient Rome, though famous for its high standards of legislation, did not grant any rights to unborn children unfortunately. It was only in the second century A.D. under the rule of Julian that the nasciturus enjoyed recognition as a living person in terms of potential benefits it could gain. The emergence of Christianity in the history of Europe resulted among others in a new social attitude towards the embryo. With a better understanding of the stages in foetal development, the Jews stopped regarding unborn children as objects of property and recognised them as human beings.