The discourse on whether or not fetuses have rights, has been quite contentious, as scholars in the medico-legal and bioethics field have advanced arguments for, or against fetal rights protection. While abortion stands as the commonly recognized breach of fetal rights, it is worthy of note that there exist other infringements that certain jurisdictions do not treat lightly.
Before delving any further, it is salient at this point to define what a fetus or an embryo is. Moore and Persuade defined a fetus as the developing human during its early stages of development. It can also be seen as the unborn offspring that develops from an animal embryo.
This article will carefully examine the rights of fetuses, discussing the various schools of thought and the legal position of abortion in Nigeria.
The difference between a fetus and an embryo
Medical experts have opined that the difference between a fetus and an embryo is at the gestational stage i.e. the period of time between conception and birth. This is usually within a period of 40weeks or 280days
Some fetal rights recognized by certain jurisdictions are as follows:
- Right to health and maternal care: Some countries of the world like the United Kingdom, Norway and Spain, for the purpose of the health of the fetus, actively warn pregnant women against the use of alcohol and other powerful drugs, entirely or partly and also emphasize dietary guidelines, all to avoid neurological disorders and cases of fetal alcohol spectrum disorders (FASDs). Although there are no laws in place criminalizing the use of alcohol during pregnancy, there have plethora of cases against pregnant women who consume illicit substances and alcohol, failure to comply with a doctor’s prescribed bed rest. In Nigeria however, little or no efforts have been geared in this direction.
- The right to be born (freedom from abortion): This right simply means that the fetus has the right to live and not be terminated at any stage of the pregnancy. It is argued that this right embodies several other rights like; the right to be conceived and the right to be implanted in the uterus.
- Right to succession: The fetus is granted the right to secede in some countries of the world under certain conditions. In Japan, a fetus is considered for the purpose of succession, as an already born. Also, countries like China, Russia and some parts of America, grant the fetus the right to inheritances under the born alive rule.
SCHOOLS OF THOUGHT
others consider a fetus at its early stage as lacking the scientific basis to be termed a child or even human, others hold strongly that a fetus should be accorded full rights to help protect it in cases of abortion practices and other negligent acts of the mother, parents or third parties
The Pro-choice School:
According to this school, no state interest described by fetal rights can waive a woman’s fundamental rights of privacy, bodily integrity and self-determination.  The right of the mother supersedes that of the fetus in every regard and she can act in her best interest. The mother of the fetus can do whatever she pleases with it as she has the right to do whatever she wishes with her body, and that includes whatever is within. They believe that the right carrying a child is the sole responsibility of the mother and she has the right to decide whether or not to go through the rigors of pregnancy or opt for an abortion when she does not.
They believe that in doing these, the rights of the mother are being guaranteed and protected.
J.A. Dada aptly captured the crux of this theory when he stated inter alia:
“If the law and the society insist on her keeping the pregnancy and a child is eventually born, can the law and the society make the woman to demonstrate the motherly love, affection and care which a child need? Can an “unwanted child” receive and enjoy adequate parental love and care necessary for his mental, emotional, psychological and physical wellbeing?”
Pro-Life School of thought:
This group believes that the welfare of the fetus should be seriously considered during pregnancy and not necessarily the mother’s concerns as to whether or not to keep the pregnancy. Here, the life of the fetus at any stage of the pregnancy is important and should not be left to the whims of the mother. Every human fetus cannot be denied their rights to be given proper care and the right to live, irrespective of how it came to be and the abhorrence of it. This school strongly oppose abortion rights for whatever reason. Although the fetus’ survival is dependent on its mother’s care and decisions, the mother cannot decide that the child be aborted.
Everett Koop in leaning credence to this school of thought, succinctly and provokingly observed that:
“We are a schizophrenic society…We will feed another starving people beset by famine, but we will make no attempt to ask them to try to control their population by contraception. We will stop cholera epidemic by vaccine in a country unable to feed itself, so that the people can survive cholera in order to die of starvation. While we struggle to save the life of a three pounds baby in a hospital’s new born intensive care unit, obstetricians in the same hospital are destroying similar facts”
The position in Nigeria:
Justice Macnaghten explained inter alia that abortion is unlawful except for the purpose of preserving the life of the mother. It is medically advised that for the safety of the mother, a fetus can be aborted. The Criminal Code absolves a Physician from criminal liability in cases where an abortion is carried out to save the life of the mother.
S. 297 provides thus:
“ A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.”
The medical practitioner is always enjoined, as a matter of ethics to do his ‘risk-benefit analysis’ or clinical judgment, to decide the most appropriate steps to take. Some of the circumstances, particularly health based, in which an abortion as contemplated by the Criminal Code, can be performed are:
- Where it is necessary to save the life of the mother: The law, strictly speaking, places primacy of the mother over the fetus if the pregnancy will lead to the death of both the fetus and the mother. Lord Macnaghten, by way of obiter stated thus:
“The law does not require a doctor to wait until the unfortunate woman is in peril of immediate death. In such a case, he is not only entitled, but it is his duty to perform the operation with a view of saving life…”
- In cases of spontaneous abortion/ miscarriage: Where pregnancy is terminated without being induced, the party cannot be held criminally liable. In cases where a pregnant woman miscarries her pregnancy due to one issue or another, the law cannot hold her criminally liable, as she did not, in any way induce same. However, in cases where the miscarriage was as a result of negligence. The mother may to be held liable.
For fetal rights to be protected and guaranteed, the following should be meticulously followed to the latter.
- Proper sex education/Sensitization: In as much as Nigeria does not permit certain infringements on the fetus, records show that the number of women who die from unsafe and illegal abortion is on the increase, with youngsters topping the chart. How then can this problem be solved? It is submitted that if proper investment is made in terms of proper sexual education, the incidence of having ‘unwanted pregnancies’ and consequently indulging in activities detrimental to the fetus; like alcohol intake and abortion, will be drastically reduced. The essence of the law in this regard, is not to look for offenders but to curtail criminal activities and having a set of regulations in this regard will be great steps in the right direction.
- Legal inclusion: Some countries of the world like Ireland has as part of part of the fundamental rights provision, the right of the fetus to live, leaving no room for further interpretations. If the lives of fetuses in Nigeria mean a lot to the system, there should be deliberate actions in ensuring that their rights are clearly provided for in order to avoid case of far reaching interpretations which were neither intended nor anticipated.
- Strengthening our law enforcement mechanism/agencies: The enforcement mechanism of the country has put in a lot in fighting crimes over the years. However, in the fight for fetal rights, arrests are usually made without proper judicial actions for justice. The Nigerian courts are yet to see cases on fetal rights infringement; not because there are none, but perhaps, cases like this are considered inconsequential to try.
- Provision of support system to help pregnant victims of rape, incest & pregnant teenagers: It is not enough to clearly hold strongly, the letters of the law against abortion without providing an institutional framework to help victims of rape and incest who get pregnant and do not see the need to keep the pregnancy or pregnant teenagers who are pressured into terminating their pregnancy.
- Provision of social and health amenities: The government has been quite deliberate in improving the health care system at all levels. Regrettably, these efforts are hardly felt. If a pregnant woman can be held liable in negligence for not taking reasonable steps in providing good medical and health needs to the fetus as is applicable in some jurisdictions, what happens when such negligence arises from lack of proper knowledge, poverty and hardship? The government has to ensure that considerations in health care services are given to pregnant women to ensure the safety of fetuses, which translates to the protection of their rights.
- Positive encouragements from our religious, cultural and social systems: In the fight for fetal rights protection, the systems supra are necessary in ensuring that proper and correct orientation are given to their members to prevent abortion cases. Every man is a member of a group that influences his or her decisions. Such membership must not be formal, but they all play pivotal roles in preserving the morals and sanity of the nation. In this case, fetal rights. The needed positive ideas and encouragements should be given to their members to ensure that fetuses are protected.
In the exercise of human rights, exclusive privileges should be given to all; the unborn and the born. A fetus, being human, should not be deprived of these privileges, as being a fetus does not make him less of a human being.
- Better Health Channel, Baby due date, (2021)
- D.A. Davey, ‘The Right to be born’ Med Law (1989)7:475-482, Medical School, University of Cape Town.
- J. Gallagher, Prenatal Invasions & Interventions: What’s wrong with Fetal Rights, 10 Harvard Women’s Law Journal 9, 37, 57 (1987)
- J.A, Dada, ‘Legal Aspects of Medical Practice in Nigeria’, 2nd Ed., (2013), University of Calabar Press, p.175.
- Japanese Civil Code in English, ‘Craftsman, LPC. Archived from the original on 22 November, 2015.
- K. L. Moore and T.V.N. Persaud, The Developing Human: Clinical Oriented Embryology (7th Ed.), Philadelphia, Saunders. (2003),
- Miriam@planned parenthood, Can you explain what pro-choice means and Pro-life means?, https://www.plannedparenthood.org accessed on 16 October, 2019.
- P. B. Linton, ‘The Legal Status of the Unborn Child under State Law’, St. Thomas Journal of Law & Public Policy. Retrieved 6 November, 2015.
- R.v. Bourne (1939) 1 K.B 687
 K. L. Moore and T.V.N. Persaud, The Developing Human: Clinical Oriented Embryology (7th Ed.), Philadelphia, Saunders. (2003),
 Better Health Channel, Baby due date, (2021), accessed on <betterhealth.vic.gov.au>
 D.A. Davey, ‘The Right to be born’ Med Law (1989)7:475-482, Medical School, University of Cape Town. accessed <https://heinonline.org/HOL/LandingPage?handle=hein.journals/mlv7&div=59&id=&page=>
 Japanese Civil Code in English, ‘Craftsman, LPC. Archived from the original on 22 November, 2015.
 P. B. Linton, ‘The Legal Status of the Unborn Child under State Law’, St. Thomas Journal of Law & Public Policy. Retrieved 6 November, 2015.
 J. Gallagher, Prenatal Invasions & Interventions: What’s wrong with Fetal Rights, 10 Harvard Women’s Law Journal 9, 37, 57 (1987)
 Miriam@planned parenthood, Can you explain what pro-choice means and Pro-life means?, https://www.plannedparenthood.org accessed on 16 October, 2019.
 J.A, Dada, ‘Legal Aspects of Medical Practice in Nigeria’, 2nd Ed., (2013), University of Calabar Press, p.175.
 R.v. Bourne (1939) 1 K.B 687