https://doi.org/10.37955/cs.v6i3.276
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The right to life of the unborn child
from a human rights perspective
El derecho a la vida del nasciturus desde el análisis de los
derechos humanos
Leopoldo Javier Larrea Simball
Guayaquil State University, Guayaquil Ecuador, leopoldolarreasimball@gmail.com,
https://orcid.org/0000-0002-7831-155X
Tanya Cecilia Tutiven Abad
Santa Elena Peninsula State University, La Libertad Ecuador, tanya.tutivena@ug.edu.ec ,
https://orcid.org/0000-0003-1112-4917
ABSTRACT
All human beings have the right to life; however, when it comes to the unborn
child or nasciturus, the controversy about whether it is the subject of this right
is heightened, especially when the debate takes place in the preamble of the
discussion of laws that approve or criminalize abortion. Consequently, the
present study aims to analyze the positions of different authors in relation to
the right to life of the unborn child from the analysis of human rights. In order
to fulfill this purpose, a theoretical research was carried out, based on the
review of scientific articles and documents related to the subject, and the use
of inductive, analytical and synthetic methods. As a result, it was determined
that the condition of the nasciturus as a person cannot be denied, therefore,
its right to life must be guaranteed from conception according to the contents
of the Universal Declaration of Human Rights.
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RESUMEN
Todos los seres humanos tienen derecho a la vida, sin embargo, cuando se
trata del concebido no nacido o nasciturus se aviva la controversia si el mismo
es sujeto de este derecho, especialmente cuando el debate se da en el
preámbulo de la discusión de leyes que aprueban o penalizan el aborto. En
consecuencia, el presente estudio tiene por objetivo analizar las posturas de
diferentes autores en relación al derecho a la vida del nasciturus desde el
análisis de los derechos humanos. Para cumplir con esta finalidad, se realizó
una investigación teórica, sustentada en la revisión de artículos científicos y
documentos relacionados al tema, y el empleo de los métodos inductivo,
analítico y sintético. Como resultado se determinó que no se puede negar la
condición de persona del nasciturus, por lo tanto, debe garantizarse su
derecho a la vida desde la concepción acorde a lo contenido en la Declaración
Universal de los Derechos Humanos.
Keywords / Palabras claves
Abortion, Right to life, Human Rights, Nasciturus, Abortion
Derecho a la vida, Derechos Humanos, Nasciturus, Aborto
Introduction
At present, the debates that arise around the legalization of abortion
have taken as their central axis the recognition of the conceived as a
person, its ownership of rights, and, above all, which rights should
prevail, those of the mother or those of the unborn child. It is not
unusual then that the arguments against abortion focus on the defense
of life from conception, placing the right to life of the unborn child
above those of the pregnant woman.
On the other hand, those in favor of abortion base their arguments on
the woman's right to self-determination and her freedom of choice.
However, there is no consensus when it comes to recognizing whether
the unborn child has the right to life, or whether, on the contrary, it is
the woman who must decide about her body within the framework of
her reproductive rights.
From the point of view of human rights instruments, the unborn child
must be protected from conception, but women also have the right to
decide on matters related to abortion. In this sense, women's
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organizations have been fighting for decades for the legalization of
abortion as a means of vindicating women's rights, while States seek
the protection of life as a fundamental right, which is why they prohibit
and criminalize abortion.
In this context, it is complex for legislators to decide on an issue that
involves human life, since both the unborn child and the pregnant
woman have the status of persons, and under this premise, they must
be recognized and protected by the State, which makes it difficult to
establish a priori differences that allow them to take a position on the
legality of abortion.
The purpose of this study is to analyze the positions of different
authors in relation to the right to life of the unborn child from the
perspective of human rights. The aim is to objectively expose the
arguments of the groups that defend life from conception, and those
who consider abortion as the right of women to decide about their
bodies, especially in cases of rape, medical complications, and
unwanted pregnancies.
The conceived and its consideration as a person.
The human being has its genesis at conception, a milestone that marks
the beginning of the embryonic and life process in the unborn child.
With the fertilization of the ovum, a series of biological processes occur
that will give rise to a new being with its own characteristics, although
housed in the mother's womb, whose development will not stop until
the death of the individual.
Zambrana (2014) defines the nasciturus as the human being in the
period of his life that goes from conception to the moment of birth, and
develops in the different stages of the embryo of the fetus, while Jara
(2013) explains that it is the being that is about to be born, whose
development begins with the fertilization of the egg by the sperm, and
the implantation of the embryo in the walls of the uterus.
it cannot be denied that the unborn child is a new being, a functional
organism endowed with a complex structure made up of DNA. In fact,
the human condition of the unborn child is evident in that it is the
product of fertilization through the union of the sexual cells of the man
and the woman, who provide the genetic material that will give life to
a new being with unique and proper characteristics.
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Despite this evidence, the beginning of life is a subject discussed by the
medical community, and there is still debate as to whether or not the
embryo in its early stages is a human being, but there is no doubt that
the zygote possesses a genome that shows in its structure a factor
different from that of its progenitors, which gives the unborn child the
status of an individual being.
Regarding the conceived as a person, Vásconez and Mena (2017) argue
that man does not change from one being to another, since,
biologically during his development there are no qualitative leaps or
changes of bodies, so that man is the same from his conception until
his death. In fact, with the development of the zygote, the embryo and
the fetus, the intrinsic capacities of the person are produced, so that
the nasciturus cannot be considered as a potential person or human
being, but as a person or human being in potential.
Human dignity and the right to life of the unborn child.
Human dignity should be understood as honor, excellence and
distinction, which make man an independent individual, regardless of
the conditions in which he develops, and personal or social
circumstances. These aspects lead the human being to have a clear
awareness of his moral and spiritual qualities that push him to the
fulfillment of duties for himself and for others (González, 2016).
Human dignity gives rise to the so-called human rights, which can be
defined as those that lead to the realization of the purposes of life, and
impose in other concrete behaviors, aimed at ensuring respect,
protection and protection of the human being.
Regarding the right to life, the Universal Declaration of Human Rights
states in Art. 3 the following: "Everyone has the right to life, liberty and
security of person", following this line, Art. 1 of the American
Declaration of the Rights and Duties of Man (1948), states that "Every
human being has the right to life, liberty and security of person".
It is evident that human rights are universal, and because of this, they
must be applied to all persons, for the simple reason of being so,
regardless of whether or not it is recognized by Positive Law, it is clear
then that legal personality is a quality inherent to human beings, which
grants them a series of rights, i.e., the legal quality must be granted to
every member of the biological species homo sapiens, even to unborn
conceived persons (Manjarrez & Yánez, 2019).
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In the opinion of Calvo (2004), the human nature of the unborn cannot
be denied, and therefore, he/she is endowed with the dignity and
rights that correspond to him/her by the fact of being a person. In view
of the above, Vásconez and Mena (2017) consider that the legal
existence of a person begins at the moment of birth, but life as such
begins with conception, however, between conception and birth there
is a natural existence, where the rule of Roman Law "Infans conceptus
pro nato habetur, quoties de commodis ejus agitur" applies, which
means that the conceived is considered born for whatever is favorable
to him/her.
From this perspective, the unborn child, as a person, is subject to
subjective rights derived from Natural Law. Consequently, given the
condition of the unborn child, protection must be provided during all
stages of gestation, since it is a holder of rights, which must be
guaranteed at least until it is able to exercise them.
Materials and Methods
The present study was of a theoretical nature, in this sense, an
exhaustive search of information was carried out in different academic
and research databases, including Sciencie, Proquets, EBSCO, Scopus,
Latindex, among others, considering mainly articles and other
documents in English and Spanish. In addition, legal and regulatory
aspects related to the subject were consulted. The research was carried
out by applying the inductive, analytical and synthetic methods, which
allowed us to know and contrast the positions of different authors in
relation to the right to life of the unborn child.
Results
The right to life of the unborn child is a controversial issue, which
currently generates social, legal and legislative debates between those
who defend the right to life of the conceived and those who approve
and support the practice of abortion. For this reason, this document
reviews the different positions adopted by various authors and the
Cosmovision of Human Rights organizations.
The Inter-American Court of Human Rights, on several occasions in
its rulings, has condemned the violation of the rights of the unborn, as
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well as highlighted the actions taken by governments in pursuit of the
protection of the unborn. Thus, in Advisory Opinion OC/17-2002, on
the Juridical Condition and Human Rights of Children, this body
states that rights are also applicable to the unborn, placing the
principle of the best interest of the child first.
In other words, the development and exercise of the rights of the
nasciturus must be considered as guiding criteria to elaborate norms
that contain orders related to the life of minors. The best interest of the
child will always be to live, therefore, for the States to decide on the
right to life from conception becomes a sensitive issue, which may
violate supranational agreements on Human Rights. From this angle,
the Latin American Center for Human Rights (2011) proposes that,
when making a decision on the right to life from conception, States
should "recommend both punitive measures for any act aimed at
destroying the life of the unborn and preventive measures".
As stated in art. 1.2 of the American Convention on Human Rights,
every human being is a person, consequently, the nature of the unborn
must be recognized as a person or human being, which makes him/her
a subject of rights in the Inter-American System. There is no doubt
then, that the States parties to the Human Rights agreements must
recognize the right to life of every person from the moment of
conception, according to a good faith interpretation of the terms
contained in the signed and ratified treaties.
Indeed, Sanchez, and Taype (2018), argues that the nasciturus is not a
subject of law at least until birth, then it must be understood that the
rights for the conceived are not null, but are subject to the resolutory
condition of birth, in other words, these rights are in a passive state,
until they can be activated once the individual is born. Therefore,
following this premise, it can be affirmed that every human being is a
person, therefore, he/she is a holder of human rights in any of the
stages of his/her integral life.
With regard to Ecuador, the right to life is constitutionally protected
from conception. Article 45 of the Constitution states that "the State
shall recognize and guarantee life, including care and protection from
conception". Therefore, the constitutional mandate considers that the
unborn is a human life, regardless of its stage of development.
It so happens that the Ecuadorian Constitution determines the
protection of the unborn child from conception, without giving rise to
any interpretation, unlike other Constitutions, which simply state that
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the right to life is inviolable. In this sense, countries such as Canada,
India, the United States and Uruguay, do not recognize the unborn
child as a subject of the right to life, which has allowed the creation of
public policies that allow the undue manipulation of the conceived, for
example, the legalization of abortion.
For Cornejo (2013), this happens because international human rights
conventions do not expressly defend the human life of the unborn, but
this is deduced from some of the texts enunciated by human rights
organizations, which gives rise to an erroneous interpretation that
ends up violating the right to life.
In this sense, the Inter-American Court of Human Rights (2011),
points out that "the lack of recognition of juridical personality harms
human dignity, since it absolutely denies their status as subjects of
rights and makes the individual vulnerable to the non-observance of
their rights by the State or by private individuals". Similarly, he argues
that denying the legal existence of the nasciturus is a clear violation of
the right to life, "although children and other legally incapable persons
lack the capacity to fully exercise their rights (for example, the right to
vote or property rights), they are fully entitled to inalienable rights
inherent to the human person" (Muñoz, 2020). (Muñoz, 2020).
And precisely, the Ecuadorian Civil Code (CCE) exposes a similar
premise, stating in Art. 63 that "The rights that would correspond to
the creature that is in the mother's womb, if it had been born and lived,
will be suspended until the birth takes place. And if the birth
constitutes a principle of existence, the newborn shall enter into the
enjoyment of said rights, as if it had existed at the time they
corresponded to it."
On the other hand, art. 61 of the CCE declares the protection of the life
of the unborn, stating that "the law protects the life of the unborn.
Consequently, the judge will take, at the request of any person or ex
officio, all the measures that seem appropriate to protect the existence
of the unborn". Then, the unborn is a subject of law by its legal nature,
which emanates from the protection of life, from the moment of
conception until birth. (Galvis, 2019)
Therefore, even if the unborn child does not have civil capacity, this
should not be an impediment for it to enjoy its human rights, or to be
recognized as a person from the embryonic and fetal stages. So, while
fundamental rights are qualified as general principles to achieve legal
effectiveness, on the other hand, the human being is being denied the
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first moments of his life, this incongruence ends up denying the
nasciturus his status as a person. This dichotomy results in the
difficulty of determining whether the unborn child really has the same
rights as the mother, whether these are superior to the will of the
mother, or on the contrary, whether its rights are subordinated to the
mother's decision.
In view of the above, Calvo (2004) considers that the right to life is
"among human rights, the one that has been subject to the most
restrictive interpretation, giving way to other rights of lower rank and
even to certain legitimate desires that do not deserve the qualification
of rights, such as those of the woman to her own body (which is placed
before the right to life of the child and thus justifies abortion). In this
way, an inversion of values is produced, in which secondary rights are
placed before the principal and fundamental right to life".
This conception is a relevant social derivation that responds to the
vindication of reproductive freedom and the controversial concept of
a woman's freedom to decide over her own body, which is used to
justify induced abortion. According to Vial and Rodriguez (2009), this
notion of reproductive freedom has been widely accepted by important
jurists, who consider that it is a woman's right to choose whether to
continue or terminate the pregnancy, putting her needs and desires
first.
In this notion of reproductive freedom, one aspect of interest is to
consider the mental health of the woman who, not being able to choose
and decide whether or not to terminate the pregnancy, would trigger
psychic-emotional imbalances or imbalances, making the unwanted
pregnancy a hopeless environment and a risk factor for psychological
disorders.
Consequently, abortion is a prevailing factor in the psychic affectation
of women. Aznar and Cerdá (2014) propose to give their criteria based
on the evaluations of the reviews of different articles on this subject,
where they conclude that women with induced abortions have between
1.80 and 7.07 higher probability of presenting mental problems,
including mentioning that mental health disorders attributable to
abortion represent between 1.5% and 5.5% of the total mental
disorders of women.
In relation to abortion, the deviation of the Law is remarkable, because
when this freedom is granted to the woman, the unborn child, who is
a person, ceases to be a subject of the Law, loses its transcendence, and
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becomes an object of the rights of others and of the legal business. To
avoid this transgression, the State has the duty to refrain from
interrupting the process of natural gestation, establishing a legal
system that allows to effectively defend life from conception. (Galvis,
2019).
In other words, by considering the life of the unborn child as a legal
good, it is subject to the will of the parents, as legitimate holders of that
legal good, therefore they have the right to freely dispose of the life of
the unborn child, which opens the possibility of performing an
abortion, as a right of parents not to have an unwanted child. (Chávez,
2015).
From this point of view, in countries where abortion has been
legalized, the norm, the protection of human rights and their
guarantees, are only valid for human beings when they are recognized
as subjects of rights, that is, after birth, but are not applicable to the
unborn, which results in a paradox, since it is precisely human beings
in their embryonic and fetal stage that are weaker, and therefore
require greater protection and legal protection of all kinds.
Therefore, it is logical that the recognition and protection of human
rights cannot be subordinated to the period in which man is born, since
the right to life is the main and most fundamental of rights, without
which the others would have no reason to exist, which is why it is
important to demand respect for life, from its beginnings until its
natural extinction.
For man, life is a right that must be protected, without distinction
between the being who has already been born and the one who is about
to be born, and precisely from this precept derives the illegitimacy of
abortion. It cannot be ignored that the right to life is the most essential
of all human rights, since it is the basis of humanity, nor can it be
denied that the human being begins to be such from conception,
therefore, the unborn child is invested with human dignity, which
gives him/her rights that are enforceable against third parties.
(Iglesias, 2016).
States cannot deny the personhood of the unborn, therefore, their right
to life must be constitutionally protected from conception. In this
sense, Positive law must recognize the unborn as a subject of rights,
leaving aside controversial criteria contrary to what is stated in the
Universal Declaration of Human Rights (Garzón, 2017).
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As Paulson (2017) argues, intentional abortion constitutes a form of
execution more serious than the death penalty, since to terminate a
pregnancy in order to get rid of the product is to deny the unborn child
its legal personality, to deprive it of its right to life and to go against
the mandates contained in the declarations of human rights.
Therefore, legalizing abortion is tantamount to denying the right to life
of a particular group of persons, in this case unborn children, which
constitutes discrimination on the basis of age or birth prohibited by
the American Convention in Article 1.1, the Additional Protocol to the
American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (Article 3), the Convention on the Rights of
the Child in its Preamble and Article 2(1), and the Declaration of the
Rights of the Child.
Thus, in several countries, the legislation that sustains laws
prohibiting abortion bases its criteria on the right to life of the unborn
child, without considering the complementary interpretation that
should be made of the rights of other women.
For example, the Convention on the Rights of the Child and the
International Covenant on Civil and Political Rights establish that life
is an inherent right of the human person, including the unborn child,
while international treaties on women's human rights, such as the
Convention on the Elimination of All Forms of Discrimination against
Women, determine that all discrimination in areas such as health,
family relations and family planning must be eradicated.
In this sense, the arguments that defend prenatal life under the
premise that it is protected by international human rights treaties
generate an even greater controversy, since they consider the rights of
the unborn child, but leave aside the rights of women, which goes
against the principle of equality and non-discrimination.
Therefore, it is not by chance that anti-abortionists defend the theory
that the embryo or fetus is a human life, therefore, they prioritize the
right to be born of the conceived, before the woman's right to decide
freely about her body and maternity. In this context, the different pro-
life groups demand the tightening of laws and oppose the legalization
of abortion, regardless of the reason for which the woman decides to
terminate the pregnancy.
Under this scheme, Ugarte (2006) argues that abortion is equivalent
to homicide, since it violates the right to life of the fetus. According to
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Pérez (2019), this position is based on the position of the Catholic
Church, for which, interrupting pregnancy is an attempt against
human life, therefore, it cannot be admitted under any circumstances
and must be punished by law.
The Catholic Church bases its fundamental criterion on the
anthropological nature of man, in the opinion of Jara (2013) "the
natural moral law evidences and prescribes the purposes, rights and
duties based on the bodily and spiritual nature of human persons. The
Creator is the only one who can direct and regulate their life and acts
and, more specifically, to use and dispose of one's own body".
Consequently, for Catholicism, life is sacred and only God determines
the beginning and end of it, therefore, under no circumstances, no
human being can claim the right to end the life of an innocent human
being.
From this perspective, Cornejo (2018) argues that the legal
criminalization of abortion, incorporates ideological or moral reasons
to prohibit the termination of pregnancy, for example, there is the
conviction that the nasciturus is a person with equal dignity to the
mother, and to attempt against his life, not only violates a superior
right, but, it is done in a conscious and voluntary way.
Morality is an intrinsic process of the subject constructed in such a way
that different subjective, environmental and cultural elements are
incorporated, so that the choice of abortion involves a confrontation of
the being himself between what he wishes and what he should do.
Luigi Ferrajoli quoted by García (2006) in his article Questions of life
and death mentions "the principle of utility and the principle of
separation between law and morality that does not end in an
integration of these complex systems but rather in an opposition
between moral values and the protective function of criminal law"
(p.184). And in the morality play, the clandestinity of abortion is
absorbed in the morality of the professional who practices it and we
leave the gap open in concomitance of the participants.
Another argument sustained by abortion's detractors is the
consideration of the fetus and embryo as a human being. This thesis
seems logical, so much so that several legislations accept it as a basis
for the criminalization of abortion. As García (2017) mentions, "the
personality of the fetus nullifies any justification of abortion" (p.189),
in other words, from this position, abortion could not be justified
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under any circumstances, even if the woman's life is in danger or she
has been sexually violated.
From the perspective of the Declaration of Human Rights, the unborn
child is considered a person from conception, therefore, it is a subject
of rights, interests and claims, so it is not only a matter of exalting a
life, but also of protecting its legitimate rights. Therefore, when it
comes to affirming or denying the legal existence of the unborn child,
the discussion becomes very complex.
Consequently, by giving the unborn child the same value as the
mother, interrupting a pregnancy is a decision that attempts against a
life, therefore, abortion would be on the same level as homicide, which
is why it is penalized by several legislations. But, from a theoretical
point of view, affirming that the embryo and the fetus are a person,
shakes the arguments of those who are in favor of abortion, so they are
forced to use medical knowledge in order to counteract this statement,
often used as an argument difficult to refute.
Other arguments used in defense of abortion are measured by the
freedom of the woman, her state of necessity, the preservation of the
life or health of the mother, in spite of this, these affirmations lose
force when the rights of the mother are contrasted with those of the
unborn child.
In the opinion of Finnis (2016), the nasciturus is a weak being that
must be protected by the State against the aggressions of others, since,
just as it cannot be admitted that the life of an innocent person is
sacrificed to save another, neither should it be permissible to
deliberately end the life of the fetus to save the life of the mother or at
the mother's wish.
Those who are against abortion state that because of its status as a
person, the unborn child deserves legal protection and protection even
before birth; however, this is not a sufficient premise for it to be
considered as a unique person. In fact, those who are in favor, defend
that the fetus is not yet a human person in the full sense, therefore, it
cannot be considered as a subject of law or superimpose this on the
rights of the mother.(Bellieni, 2019)
It should be noted that the defenders of abortion consider that it is a
woman's right, therefore, its recognition guarantees compliance with
human rights treaties and agreements. In this way, abortion is justified
with arguments that defend women's freedom, which range from "the
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supposed property of women over the fruit of their sexual relations, to
the atavistic condition of subjugation, which alone would legitimize
any demand related to the demands of a minority and exploited
group". In any case, recognizing the woman's right to self-
determination is a questionable matter, since it implies the denial of
the right to life of the unborn child.
As indicated by Bergallo et al. (2018), "the autonomy of the woman
would be limited by not being able to exercise a right to have an
abortion, but this limitation does not eliminate or affect her essential
freedom or autonomy", but abortion does deprive the unborn child of
the right to life, which is certainly an affectation to the essence of this
right. For this reason, many legislations that have legalized abortion
do not consider the unborn child as a person until birth, since, not
considering the fetus and the mother as equals, there is no difficulty in
discerning who to save and who to let die so that the other survives.
A literature review article from the Department of Business
Organization, Marketing and Sociology, Sociology Area, University of
Jaén, Jaén, Spain, (2019) on the exploration of the emotional
experiences of women around the voluntary interruption of pregnancy
shows the presence of anti-abortion protesters in the woman's
environment as a factor that affects the appearance of negative
emotions generating in traumas before the stigmatization of this social
myth, leading the woman to feel the lack of autonomy and personal
decision which would make her doubt the support of her partner,
family and close people showing the gender inequality as a
consequence of this critical fact during stages of the life cycle
fracturing the relationships with the environment.
For example, in society there is a clear inequality in terms of the way
in which the product to be aborted is conceived, one part of which
points out or judges the woman who decides to terminate an unwanted
pregnancy because she does not feel ready to be a mother, while it is
intended to legalize abortion when the pregnancy is the result of rape.
In this scenario, society does not seek to protect the right to life of the
unborn child, nor the woman's freedom of choice, but rather to indulge
its moral and selfish prejudices.
To conclude, it is clear that there is a conflict of rights between the
autonomy of the woman and the life of the unborn child, which makes
it difficult for legislators to adopt a position in favor or against
abortion. However, this must be resolved under a criterion of
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proportionality, in order to determine the limits that legislators must
impose when passing laws on abortion, without affecting the essence
of the fundamental rights of the unborn child and the mother.
Conclusions
The Declaration of Human Rights grants the unborn child the status
of a person from conception, therefore, it is a subject of rights, interests
and claims, so it is not only a matter of exalting a life, but also of
protecting its legitimate rights. Then, when it comes to affirming or
denying the legal existence of the unborn child, the discussion
becomes very complex. It cannot be denied that the legal personality
and rights of the nasciturus provoke endless debates that do not allow
a global consensus on the limits and scope of the rights of the unborn
child. This makes it difficult for legislators to decide objectively on
those sensitive and controversial issues that could imply a violation of
the right to life. For this reason, it is interesting to analyze the different
positions regarding the moment in which the conceived child acquires
the status of a person, and from when the right to life must be
guaranteed, in order to prevent legislative and judicial decisions from
being influenced by religious, subjective or unscientific positions.
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