The legal status of the fetus as a patient in Europe

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  • University of Sheffield


The purpose of this chapter is to provide an overview of the legal status of the fetus in Europe, with a view to exploring the possibility of medically treating the human fetus as a distinct patient at later stages of pregnancy. Fetal surgery, pioneered in the 1980s, is becoming an increasingly common method of treating medical conditions, which could affect children after birth, as recent research has shown that it can bring advantages over postnatal treatment. As such, fetal surgery raises interesting ethical and legal questions concerning the interests, rights, and duties of those involved, i.e. the doctor, the mother, and the fetus. For instance, do doctors owe a duty of care towards the fetus, which has not yet been born? Can the mother refuse treatment beneficial for the fetus, but not for her? Do doctors, who owe a duty of care to the mother, have a right to perform an operation, which will not be medically in her best interests? In this chapter we propose to revisit some of these questions in light of the latest scientific advances. However, instead of focusing on the conflict of maternal and fetal interests, we take a step back and look at the legal status of the embryo in national constitutional law and international law. We argue that by analyzing the constitutional dimensions of problem we might in fact render some of the questions redundant and superfluous. To this end, we shall proceed in three steps. First, we examine the legal status of the fetus in a number of select European countries (UK, France, and Germany). Then, we chart the pertinent case law of the European Court of Human Rights and of the Court of Justice of the European Union with respect to prenatal human life. Last, we bring these different strands together to draw an overall conclusion. Our inquiry shows clearly that, as things stand, and contrary to the law in force in a number of US states, the fetus does not have a distinctive legal existence and can only be protected via the body of the pregnant woman. Accordingly, it appears to be the case that all medical interventions on the fetus necessitate the pregnant woman’s free and informed consent.


Original languageEnglish
Title of host publicationThe fetus as a patient
Subtitle of host publicationa contested concept and its normative implication
EditorsDagmar Schmitz, Angus Clarke, Wybo Dondorp
Publication statusPublished - 16 Apr 2018

Publication series

NameBiomedical Law and Ethics Library