The importance of recognizing the legal capacity of the conceived

But is it just like that? To respond, it is important to understand how this proposal has come, what its meaning is and what the historical, cultural and legal foundation is. Let’s say immediately that it does not arise now but 28 years ago, when – launched as a proposal for a popular initiative by the Movement for Life – the first time was presented to the Chamber of Deputies on 20 July 1995 with the SI SI 19,277 subscriptions including those of 400 university teachers and 16 university rectors.

He was then made his own by the Forum of Family Associations (President Luisa Santolini) who in the context of the so -called «Family dispute» promoted a petition that collected over 1,400,000 members thus strengthening the authority of the proposal. On February 1, 1997, on the eve of the day for the life of that year, he was the subject of an important and participated conference that was held in Florence at the Palazzo dei Congressi. Giuliano Amato, Antonio Baldassarre, Luisa Santolini, Francesco D’Agostino and Carlo Casini illustrated it. The words of Amato are significant: «I have the impression that residues […] historically archived that the legal capacity is purchased at the time of birth». The proposal, assigned in that legislature to the competent Commission of the Chamber with the n. 5, has never been discussed either in that legislature, nor in the subsequent legislatures that saw her recurred by numerous parliamentarians both in the Senate and in the Chamber. However, it has always been considered a fundamental proposal to affirm the principle of equality. 

Giuliano Amato himself returned to the topic in 2011 on the occasion of the annual conference of the Movement for Life: «The theme he dealt with is among those that many try to set aside and which however return to the scene because they are ineligible. Life begins with conception and the child conceived is already a creature who begins his path in the world. I am convinced, and not from today, that one of the implications of this is the recognition of its legal capacity, which is the ability to be the owner of rights protection and protected by the system already by conception. Thus […] should be in the civil and social reality of our time ».

The starting point and arrival is the principle of equality, the cornerstone of modernity. All human beings are the same. Everyone. The common denominator that makes equality is the value of life, also called human dignity whose characteristics are inherence and equality. The title of dignity belongs to the human family. The first, most elementary manifestation of human dignity is the right to life. This is one of the most relevant conquests, consecrated in the cards on human rights inaugurated after the Second World War.

To this cornerstone of modernity – equality between all human beings: always people and never things, always subjects and never objects, always fine and never means – the proposal to modify article 1 of the civil code is linked which currently reads : «The legal capacity is acquired from the moment of birth. The rights that the law recognizes in favor of the conceived are subject to the event «. The proposal requests the modification of the first paragraph of art. 1 of the Italian Civil Code, in these terms: «Each human being has the legal ability from the moment of conception», leaving the second paragraph intact.

The basic theme has been said, is extraordinary and fundamental: equality between all human beings. Keep in mind that art. 22 of our Constitution establishes that «no one can be deprived, for political reasons, of legal ability, of citizenship, of the name»: not even one human being can be deprived of legal ability. The reference to political reasons painfully evokes those racial which, precisely in art. 1 of the Italian Civil Code, had added a third paragraph then rightly repealed in 1944: «The limitations to the legal capacity deriving from belonging to certain breeds are established by special laws». Abbogare that paragraph was rightly considered a conquest. Art. 6 of the Universal Declaration on Human Rights and art. 16 of the Civil and Political Pacting Pact attribute to «all» the right to recognition of legal capacity. More explicitly art. 3 of the American Convention on Human Rights attributes the legal capacity since conception.

But what does it properly mean «legal capacity»? It is the «technical» expression with which the law separates the subjects (people) from objects (things), on the basis of the attitude of the first to be owners of rights. Once only one right is recognized, the qualification of a person, of a subject, for those who are the owner of it cannot be excluded. In our system there are already several important indications that orient towards the recognition of the legal capacity of the human being in the embryonic phase. One for all is art. 1 of law 40/2004 on the «medically assisted procreation:» The law ensures the rights of all the subjects involved, including the conceived «. There is also the jurisprudence of the Court of Cassation in which the conceived is defined as «center of interest legally protected» (n. 11503/1993) and that of the Consulta which affirms the constitutional protection of the conceived on the basis of art. 2 which recognizes and guarantees human rights (sent. 27/1975) and in particular recognizes the right to life (sent. 35/1997). In the same direction some important opinions of the National Bioethics Committee. In any case, the human being in the embryonic phase has never been denied humanity, indeed it is evoked when, as in the constitutional sentence 229/2015 it is stated that «the embryo is certainly not reducible to mere biological material» and that «exists the need to protect the dignity of the embryo». However, the acceptance of the reform of art. 1 of the cod. civ. It would give vent to the regulatory and jurisprudential guidelines present in our system precisely because of the current art. 1 are found under a «lid» by raising intricate interpretative problems. It could be objected that the exclusion of the legal capacity of the conceived established in the first paragraph of art. 1 of the Civil Code is valid in the field of private law, but not in the public one, particularly in the constitutional one. However, this correct observation must deal with the constitutional sentence that opened the way for the abortion law. It, without explaining it, probably thought of art. 1 of the civil code when denied the conceived – against which the human rights referred to in art. 2 – The quality of person. The word «person» was used as a discriminatory function between born human beings and human beings not yet born. A rigorous reasoning in technical-legal terms should also have recognized the conceived person, as owner of human rights. The implicit reference to art. 1 c.c. However, it is completely irrelevant since it only concerns the field of private law, while the right to life concerns the constitutional sphere, that is, to public law, but this demonstrates the «weight» that this regulation of civil law also has in other parts of the system.

Having said that, the cultural breath would be really great, because it is a question of completing the historical motion that over the centuries has from time to time has freed entire categories of human beings from an inferiority condition in the name of the expansive force of the dignity of Every human being, therefore of the principle of equality. Article 1 of the civil code should therefore be modified, because the direction of civil progress requires the extension of the principle of equality – is one of us – even those who exist, are there, but which are simply so small that they can be easily discarded, ignored, or canceled.

«The proposal does not want to be a declamatory or provocative gesture. He wants to indicate a way to get out of sterile controversy, he wants to contribute to a moral and civil recomposition, «wrote Carlo Casini. Therefore, those who fear the law on abortion to be «touched», but they seriously ask the question: what is the ideological prerequisite of the 194? If the assumption is the pretense of the «right of abortion», it is clear that it becomes unbearable everything that highlights the presence of a real and concrete son that lives and grows in the mother’s womb, because demanding that «right» means erasing that Son not only from the womb, but also from the mind and heart, as if it did not exist, as if it had never existed. But most of those who supported and supported 194, say that it intends to protect motherhood during pregnancy and women’s health, maintaining a «agnostic» position compared to the child. So why raise barricades? «It seems to me that it is not trivial to repeat with legal language – Carlo Casini wrote – that all men are always the same in their mysterious value and that one cannot give any being belonging to the human biological species that is not a man and for this reason and Therefore subject, an entity subtracted from the kingdom of things. After all (genetics, abortion …) we will speak later. But in the meantime how do you agree or at least not confront this point? ». If the reform of art. 1 of the civil code served to mature the total gaze ability on the woman and the child in his womb, to strengthen the responsibility of the parents, society and politics towards those who are traveling towards birth with measures that embrace his mother in a logic of sharing difficulties – applying art. 5 of Law 194 -, to outline new methods of protecting nascent life and motherhood during pregnancy, the reform would really be a great step forward for the whole society.