Case about the beginning of human life
This article considers question of where human life begins for the criminal law of Ukraine with the help of a criminal case study.
The child, having received intrauterine traumas as a result of a third party assault, was prematurely born alive and viable. However, in
35 hours he died from traumas which were received prenatally. As in the criminal law of Ukraine beginning of human life is associated
with the beginning of physiological delivery, the court was not capable of recognising as a murder the attack to life of the child, which
took place before the commencement of physiological delivery.
In some countries, such as Greece, Romania and Poland, the child in prenatal stage is protected by the criminal law without being
recognised as a subject of law.
Some other countries apply the so called “born alive rule”, whereas prenatal harm to the child becomes legally significant only
in the case of subsequent live birth. In this approach, a perpetrator paradoxically is more likely to be held responsible for a less severe
harm. In case if assault leads to the death of the child prenatally, the assailant will not be recognised guilty of a murder.
In the majority of the US states, the statutes were gradually changed in order to overcome this rule in jurisprudence. Some states
recognise legal personhood of the child in prenatal stage for the purposes of criminal law. The US federal law as of 2004 also provides
for criminal law protection of the unborn children, establishing that violent offences against the unborn shall be punishable in the same
way as those committed against already born people.
This, however, does not mean that a pregnant woman must be held responsible for causing harm to her child prenatally. Doctors
who are acting in accordance with law and pregnant mothers are usually excluded from the scope of protection of the criminal law. In
case of the opposite, the threshold between the lawful and unlawful behavior is very uncertain.
Need for protection of the children in prenatal stage from third party assaults, on its part, is more than certain. Therefore, the
author suggests to introduce two articles into the Criminal code of Ukraine providing for responsibility for intentional and unintentional
injuries to a child in prenatal stage, except for cases when these injuries are caused by the mother or by the doctor committing a lawful
abortion or providing medical assistance to the woman or to her child in prenatal stage.