APLICACIÓN DEÓNTICA DEL MODELO COMUNICATIVO, EL ANÁLISIS DE LA QUEJA DESDE EL “DEBER SER” DISPUESTO EN LA

The born alive rule is the legal translation of a biological definition of a human being. According to this definition, a human being is any human organism that is capable of independent integrated functioning.423 _{Other non-biological attributes such as} intelligence or sentience are irrelevant.424 _{This understanding is reflected in the born alive} rule; “…live birth [is regarded] as the simplest bright-line rule for determining whether independent integrated organismic functioning was present”.425

The born alive rule has been widely adopted so that according to the International Encyclopaedia of Comparative Law, “'[p]eople everywhere acquire general legal personality at birth … all laws establish the self-evident prerequisite that a child must come into the world alive in order to attain legal personality’”.426 _{Libyan law is no} exception. According to the Civil Code (Article 29), a human being’s legal personality starts when s/he is completely delivered alive.427 _{This requires, according to the} commentators, that the newborn be completely separated from the pregnant woman;

423 _{C. M. Charles M. Kester, "Is There a Person in That Body?: An Argument for the Priority of Persons and} the Need for a New Legal Paradigm," The Georgetown law journal 82, no. 4 (1994): 1643-1687, 1644 & 1646.

424 _{Naffine, "Who Are Law's Persons? From Cheshire Cats to Responsible Subjects”, 361.}

425 _{Kester, "Is There a Person in That Body?: An Argument for the Priority of Persons and the Need for a} New Legal Paradigm," 1644 & 1650.

426 _{A. Heldrich and A.F. Steiner, ‘Legal Personality’ in M.A. Glendon (chief ed), International} Encyclopaedia of Comparative Law Vol 4: Persons and Family (Tubingen: JCB Mohr, 1995) 3, 4. As cited by Naffine, "Who Are Law's Persons? From Cheshire Cats to Responsible Subjects”, 357.

427_{Al-Qāānwn al-Mdny al-Lyby, al-Jrydh al-Rsmyh 20/11/1954 nqlā ʿn Mwswʿh}

4. Defining Legal Personality

partial separateness, regardless of how big the separated part is, is not sufficient for the initiation of legal personality.428 _{Several commentators have interpreted the conferral of} legal personality upon live birth as an indication that human life starts at that time too.429

The position of Libyan Criminal law is slightly different. While it links the beginning of the protection it offers to persons with the occurrence of birth, it does not require the procedure of birth to be completed. Rather, the protection starts at the beginning of the birth process. This is evident in Article 373 of the Penal Code that equates the killing of a foetus during labour with the killing of a recently born child.430

Another example of the systems adopting the born alive rule can be found in Islamic jurisprudence. The basis of this stance is the Prophetic saying that subjects the right to inheritance to live birth. However, jurists have differed over the meaning of live birth. While Hanafi jurists have argued that the child is born alive when most of its body is expelled from the pregnant woman’s body, Maliki, Shafi’a, and Hanbli jurists have asked for a complete delivery.431

The other relevant example is that of English law. In Paton v British Pregnancy Advisory Service Trustees and Another, the court confirmed that: “[t]he foetus cannot, in English law … have a right of its own at least until it is born and has a separate existence

428_{Al-Sdh, ʿbd al-Mnʿm Frj. Aswl al-Qānwn. Birute: Dār al-Nhḍh al-ʿrbyt,}

1972. 389. However, the severance of the umbilical cord is not necessary. See (ʿbwdh,

Āsāsyāt al-Qānwn al-Wḍʿy al-Lyby, al-Mdkhl al-ā ʿlm al-Qānwn, al-Hq,

98.)

429_{Bkr, ʿbd al-Mhymn. Al-Qsm al-Khāṣ fy Qānwn al-ʿqwbāt. Cairo: Dār al-}

Nhḍh al-ʿrbyt, 1977. 544. Zhrt, Mḥmd al-Mrsy. "Ālṭbyʿh al-Qānwnyh ll- Jnyn.” Al-Mḥāmy (Kuwait), no. April-June (1990), 92.

430_{Bārt, Mḥmd Rmḍān. Qānwn al-ʿqwbāt al-Lyby, al-Qsm al-Khāṣ, al-Jzʾ al-} Āwl, Jrāʾm al-āʿtdāʾ ʿlā al-Āshkhāṣ. Misurata (Libya): al-Dār al- Jmāhyryh ll-Nshr w al-Twzyʿ w al-Āʿlān, 1993. 20, 21.

431_{Jmʿh, Fkry ʿbd al-ʿzyz Mḥmd. Al-Hmāyh al-Mdnyh l-Nfs al-Sghyr. Cairo:}

4. Defining Legal Personality

from its mother”.432 _{Similarly, in R v Tait, the President of the Family Division said that,} “…[t]here can be no doubt, in my view, that in England and Wales the foetus has no right of action, no right at all, until birth”.433 _{Live birth occurs, it is held, when the process of} birth has been fully completed. As Littledale J directed a jury in R v Poulton,434 _“…with respect to birth, the being born alive must mean that the whole body is brought into the world; it is not sufficient that the child respires in the progress of birth.” As such, destroying the life of a foetus before the process of birth has been entirely completed is not murder. However, if such an act is committed against a foetus capable of being born alive with intent to destroy its life, this act is punishable with life imprisonment under the Infant Life (Preservation) Act 1929.435

This applies also to common law in general. The Ontario High Court decision in Dehler v Ottawa Civic Hospital436 _{is a clear example. In this case, an injunction was} sought to prevent a hospital from performing an abortion. After enquiring about the legal position of the foetus, the Court concluded that, since it was unborn, it had no full legal personality and so no rights of its own.437 _{In their words:}

[T]he law does not regard an unborn child as an independent legal entity prior to birth … A fetus, whatever its stage of development, is recognized as a person in the full sense only after birth. … In short, the law has set birth as the line of demarcation at which personhood is realized, at which full and independent legal

432_{Paton v British Pregnancy Advisory Service Trustees and Another (1979) 1 QB 276, 279.} 433_{R v Tait, (1989) 3 All ER 682.}

434_{R v Poulton, (1832) 5 C & P 329.}

435 _{For a discussion of the purpose behind this Act and its function in the light of the Abortion Act (1967),} see John Kenyon Mason, Medico–Legal Aspects of Reproduction and Parenthood, 2nd ed. (Ashgate; Aldershot, Hants, England: Dartmouth, 1998). D. Morgan and R. G. Lee, Blackstone's Guide to the Human

Fertilisation and Embryology Act, 1990: Abortion and Embryo Research, the New Law (London:

Blackstone Press 1991).

436 _{Dehler v Ottawa Civic Hospital, (1979) 101 D.L.R (3d) 686.} 437_{Ibid., 695.}

4. Defining Legal Personality

rights attach, and until a child en ventre sa mère sees the light of day it does not have the rights of those already born.438

The Supreme Court of Canada approved this ruling in Tremblay v Daigle.439

The other issue regarding which the born alive rule has been applied, is that of the possibility of applying laws prohibiting delivering or supplying drugs to women who use illegal drugs during their pregnancy. The courts in the US have, in general, founded their refusal to apply such laws on the basis that the prohibited drug supply is that to another ‘person,’ while the foetus is not a ‘person’.440 _{As Mason states, “…fundamentally, the} common law sees no personality in the unborn foetus: any personal rights as do exist can mature only at birth.”441