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Statement by the legislator
On 19th March 2003, in the context of the proposed law against road
violence, the members of parliament accepted the creation of a new
offence for unintended pregnancy termination. This punishes "Carelessness,
negligence and a breach of a particular obligation for safety and caution,
resulting in the death of an unborn child without the consent of its
mother, in general, and more particularly in the context of road
accidents. The statement by the legislator was made necessary to fill the
legal void which was uncovered by the Court of Appeals on 29th June 2001.
J.P. Garraud who submitted this amendment, recalled during the debate : "We
cannot be satisfied with the legal void which persists on this matter,
since every year, several cases of analogous accidents occur."
The facts (Grosmangin case)
On 29th July 1995, Sylvie G., who was 6 months pregnant at the time, fell
casualty to a reckless driver, driving in a state of drunkenness. She was
injured in the accident, and through the violence of the impact, lost the
child she was bearing: the foetus was viable. The Court in Reims,
sentenced the driver, not only for the injuries caused to the mother, but
also for unintentional manslaughter. The Court of Appeal in Metz, did not
accept the latter sentence, considering that manslaughter could only be
considered with respect to a child whose heart was beating and who
breathed at childbirth. On 29th June 2001, the Supreme Court of Appeal, in
plenary session, confirmed the decision by Metz. The court did not accept
the qualification of unintentional manslaughter, since the foetus cannot
be considered as a person.
The appeals court judgement
What about the interpretation of criminal law ? In order to avoid the idea
of unintentional manslaughter, the judgement of the Appeals Court on 29th
June 2001, was based in particular on the following argument : "the
principle of the legality of offences and of sentences, which demand
strict interpretation of criminal law, is contrary to the philosophy of
article 221-6 of criminal law which punishes unintentional manslaughter of
others, even by extension to unborn children". This decision was countered
almost unanimously by numerous commentators who criticised the motivation
of such a judgement.
Others : Article 221-6 of the new criminal code defines as
unintentional manslaughter "the fact of causing death to others by mistake,
carelessness, inattention, etc.". The question raised is therefore not so
much as to whether or not the article is applicable or not by extension to
unborn children, but, as the Appeals Court says, to know whether or not
the term "others" includes the unborn child. Is the unborn child
considered as other ? The foetus is indeed other, since it has no autonomy,
this does not mean that it does not possess its own biological life. There
is nothing to suggest that the legislator intended to exclude the unborn
child from legal protection, since he included in the civil code "the law
which ensures respect of the human being from the very beginning of its
life". Abortion being the only exception to the rule.
Person : Some people consider that the term other corresponds to a
person. They refer to the legal personality of the human being (the
dominant doctrine bases this on a live birth). But this legal personality
is a mere abstract construction, whereas criminal law is only concerned
with the being in flesh and blood.
Viability : Certain others wish to link the notion of manslaughter
with that of viability, but the notion of viability is not recognised in
criminal law, which is intended to protect life and not the aptitude for
life.
The fallout from the judgement
The importance of this judgement by the appeals court, is also due to the
moral and medical consequences :
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The unborn child therefore finds itself stripped of any legal protection.
But how can parents accept that the child they were expecting and have
lost through the fault of a third party, did not exist in legal terms and
therefore they have not lost anything ?
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There exists a repressive precedent sentencing a doctor for unintentional
injury to a foetus which resulted in a handicap. So how can one explain
that at the same time the foetus may be a victim of unintentional injury,
but cannot be a victim of unintentional manslaughter.
The changes in precedent
By a judgement on 2nd December 1882, the Appeals court in Douai sentenced
a woman who was illegally conducting birth deliveries, and who had caused
the death of a child in utero. The judgement stated that "although the
child had not breathed, it had none the less lived its intra-uterine life
; its death in itself is the proof of its previous existence". Since
then, the trend of precedent, favourable to the legal protection of the
unborn child, has been maintained until recent times, even after the
decriminalisation of abortion.
No status for the foetus
The offence of involuntary termination of pregnancy is therefore intended
to fill the legal void raised by the Appeals Court. It provides protection
for the mother. Another amendment was tabled in Committee (by M. Hunault),
he proposed extending the protection to the child in utero. But this was
thrown out, the legislator refusing to take up position on the status of
the foetus.
See www.genethique.org under "unintentional manslaughter of
the foetus"
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