Foetal Personhood in the Jurisprudence of Abortion in International and Comparative Law

Abstract

One of the most disputed issues concerning the foetus particularly vis-à-vis the law on abortion is its personhood. While there is unanimity among  scholars on the need to be definitive on what foetal personhood is, there abound diametrically opposing arguments about its legal status. It is  imperative to resolve this conundrum because of the effect of the findings thereon on abortion debates. This is because if the foetus is regarded as  a legal person abortion would be homicide, except in self-defence. If otherwise, the procedure may be legal, even on request. Thus, determining the  status of the foetus is the starting-point for resolving most of the issues on the jurisprudence of abortion. It is against this backdrop that this  article examines the laws of selected countries and international and regional instruments on the status of the foetus in comparison with women’s  right to abortion. The article attempts to resolve the misgivings arising from the ascription to the foetus of certain pre-birth rights even while the  foetus - the supposed bearer of those rights - is not yet born and in spite of the retention of the born-alive-rule in most legal systems. The article  concludes that though the foetus is considered precious - even from conception - there is no basis for supposing that the foetus in-utero have  inherent legal personality a fortiori the right to life as to reject women’s right to abortion unless such provision is otherwise unequivocally imputed  into the law of a country.