The legal position of the foetus raises difficult questions about the status which we accord the developing human being within society. Most conceptions of criminal liability are predicated on the person; usually, there is a victim and an aggressor, both of whom must be legally relevant persons before doctrines of criminal law can be applied. Conceptions of personhood in this context are most often taken in relatively straightforward terms. Surely we know who is, and is not, a “legally relevant person”? And yet, the question is not easily answered in respect of the foetus. Within the UK and American traditions, a “legally relevant person” has not included the unborn child, but increasing developments in the field of foetal rights, particularly in some American jurisdictions, casts doubt on this. In analysing the status of the foetus under national criminal laws, there are two questions to be posed. First, is the foetus capable of being described as a victim and secondly, should recognition of the foetus as a victim bring into play the associated criminal defences which would be available if the accused had attacked or killed an independent individual? Of these, the first presents perhaps the greatest hurdle while the second falls into place if the first is accepted. If we accept that the foetus can be classified as the victim, then a prosecutable crime has been perpetrated and, in principle at least, it would seem reasonable to make available such defences as would be open to the accused in any other such case. Thus, and of particular note to the American developments discussed later, if we accept the foetus as a victim of a homicidal assault at the hands of a third party, should we then accept a defence for a person who intervenes, and perhaps even kills that third party, in defence of the unborn victim?
CHRISTIE, S. 2006. Crimes against the foetus: the rights and wrongs of protecting the unborn. Medico-legal journal of Ireland [online], 12(2), pages 65-76. Available from: http://www.westlaw.co.uk