§ 111 The Legal Status of Unborn Persons
Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A man may settle property upon his wife and the children to be born of her. Or he may die intestate, and his unborn child will inherit his estate. Yet the law is careful lest property should be too long withdrawn in this way from the uses of living men in favour of generations yet to come; and various restrictive rules have been established to this end. No testator could now direct his fortune to be accumulated for a hundred years and then distributed among his descendants.
A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth.”272
To what extent an unborn person can possess personal as well as proprietary rights is a somewhat unsettled question. It has been held that a posthumous child is entitled to compensation under Lord Campbell’s Act for the death of his father.273 Wilful or negligent injury inflicted on a child in the womb, by reason of which it dies after having been born alive, amounts to murder or manslaughter.274 A pregnant woman condemned to death is respited as of right, until she has been delivered of her child. On the other hand, in a case in which a claim was made by a female infant against a railway company for injuries inflicted upon her while in her mother’s womb through a collision due to the defendant’s negligence, it was held by an Irish court that no cause of action was disclosed.275 The decision of two of the four judges, however, proceeded upon the ground that the company owed no duty of care towards a person whose existence was unknown to them, and not upon the ground that an unborn child has in no case any right of immunity from personal harm.
The rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living. Abortion is a crime; but it is not homicide, unless the child is born alive before he dies. A posthumous child may inherit; but if he dies in the womb, or is stillborn, his inheritance fails to take effect, and no one can claim through him, though it would be otherwise if he lived for an hour after his birth.