The stillborn child: Does it have any (human) rights?



This article does not attempt to provide definitive answers to the questions implied in the title. Rather, it is a thought-piece that asks a lot of questions and, maybe, suggest a few ideas that might be considered further. I am not a legal nor moral philosopher, so my thoughts are those of an ordinary person who is somewhat troubled by the questions. I feel sure that one day these questions will have to be asked in order to provide answers that might have important implications for the rights of everyone.

When a child is born normally it immediately becomes an individual person. Even if it subsequently dies at a very early age its existence is acknowledged under the law, by registration of the birth and death, and in other ways. During its short life, it may also be involved in various religious and secular rites that establish it as an individual member of society and culture. Of course, at such an early age it has no say whether any of its rights are abused or granted. It has to depend on others, such as its parents, to defend it from misuse and other wrongs and to make sure that its rights are protected. These rights are well enshrined in law as applying to any person, including the newly born.

Most legal jurisdictions provide that at some point, as defined in law, a foetus becomes a person, and thus has rights. Those rights include the right to life amongst others, depending on the particular jurisdiction and its laws and opinions. The foetus, of course, is not in a position to demand or defend its own rights, but others can, and do, on its behalf. The child comes into these rights automatically at birth.

My first questions are: What happens if the foetus dies after the point where it has become legally a person? Does it retain its human rights, or do they disappear with the spark of life? Does it still have rights that can be defended in law, or does it become merely a statistic that anyone can treat as they wish and disappears from the legal view?

Next I wonder what position the foetus holds if it dies after briefly showing signs of life but before the point of becoming legally a person. Does it then have its rights under the law or not?

Further, what if the foetus never shows signs of life. Does it then have any legal rights even though it has never lived? Does this apply to an aborted foetus as well? Are human rights based on the fact that one is or was once alive or does conception itself provide some grounds for demanding such rights? Are there rights relating to being dead that apply even to those who have never lived?

Again: Just what rights should be given to stillborn children? What rights can justifiably be conferred upon them and have any meaning? If the rights cannot be demanded nor defended by the recipients will they have any meaning when they can only be defended by third parties who cannot, by definition, know the will nor desire of the persons whose rights they claim to be defending?

These questions and answers may become important at some time, if they are not already being considered by some forward thinking people.

The answers to some of these questions must come from legal philosophers and authorities, others may be answered by religious authorities. Just where the boundary between secular and religious acceptability lies depends on one’s view of both. However, it is unlikely that they will agree entirely and so some controversial and troublesome discussion is bound to take place before a solution is found. If it ever is.

From a religious point of view, how do the above questions and their answers relate to such matters as baptism, becoming a member of a church, the giving of last rites preceding death, death itself and the survival or otherwise of the soul, burial and prayers for the dead? All these matters depend on what is meant by the how and when one lives and dies. Religious people will have to make genuine and difficult decisions on what life consists of, when it starts and ends, and what rights apply to those who live or die under particular and unusual circumstances. The religious stance will also be complicated by any rights granted to the foetus/stillborn child under legislation that must be obeyed. In some cases the religious and legal points of view will surely be in conflict and require some considerable work to effect a working compromise that suits all parties – if that is at all possible.

Secular authorities will have a different set of questions and priorities, such as the registration of birth and death, inheritance, and the rights to funerals and burials. These will be no easier to answer than the religious questions. If legislation is to be enacted to manage the situation then care must be taken not to allow breaches of whatever rights the foetus/stillborn child is to be granted. These laws may be unpopular with some people who have particular views on the rights of the foetus/stillborn child, or want to deal with the situation in their own ways. As well as the law makers becoming involved there will also be a role for the enforcers. However, enforcement must also take place such that neither the rights of the stillborn nor the living are breached. Thus the legislation and its enforcement are bound to be controversial.

I believe that one day these questions will have to be considered, discussed and answered. They will not be easily settled to everyone’s satisfaction. Inevitably there will be those who oppose some solutions for personal, secular or religious reasons. Others will object to any solution at all, because they feel that it is intruding on their own rights or meddling in areas that should not be made into laws applying to everyone. This will not be an easy situation to settle, but  I believe that, eventually, it will have to be. One way or another.




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