Does an unborn child have rights? And what if its interests clash with the mother’s decision? The Czech legal system offers a number of rules governing the protection of unborn life – from criminal law protection, to inheritance rights, to issues related to abortion.
The right to life is one of the most important fundamental rights enshrined in the constitutional order of the Czech Republic. According to Article 6(1) of the Charter of Fundamental Rights and Freedoms, everyone has the right to life and human life is worthy of protection even before birth. However, this formulation leaves room for interpretation, as it is not clearly defined when exactly the legal protection of life begins. While a child acquires full legal personality at birth, the question of the protection of the unborn remains a matter of debate.
The unborn child is not a full bearer of rights, but is granted certain protections. This protection subsequently appears in several areas of law, such as civil and criminal law. The Civil Code, for example, provides that a child conceived is to be regarded as born if it suits its interests, but only if it is born alive.
Birth is the key moment when the unborn child becomes a full subject of the law. Under Czech law, birth is the moment when the child leaves the mother’s body and begins to breathe independently. This legal moment is essential for the granting of legal personality and full protection, which the Czech legal system guarantees to every natural person from birth until death.
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The criminal law of the Czech Republic approaches the protection of the unborn child primarily indirectly, through the protection of the pregnant woman. Interventions against a pregnant woman that result in damage to or death of the foetus are qualified as criminal offences, including the more severe punishment for attacks on pregnant women under the Criminal Code, which takes this circumstance into account as a particularly aggravating factor. However, the unborn child is not directly the subject of criminal protection, but rather an object whose protection is based on the physical integrity of the mother.
The facts of criminal offences relating to abortion, particularly when performed illegally or against the woman’s will, also constitute a significant modification. However, the woman herself is never criminally responsible for the abortion – only the doctor or other persons who perform the abortion illegally are liable to criminal sanctions.
Specific protection for the fetus can be found in the offence of murder of a newborn child by the mother (Art. 142 of the Criminal Code), which takes into account the psychological and social circumstances surrounding the birth.
The civil law of the Czech Republic grants limited legal personality to the unborn child. According to Article 25 of the Civil Code, a conceived child is regarded as born if it suits its interests, but only if it is born alive. This legal fiction makes it possible to protect the rights of the unborn child from conception in areas where this is relevant, for example in inheritance law.
Thus, for example, a child has the right to inherit from its parents or other persons before birth if the relevant legal circumstances arise. Otherwise, i.e. if not born alive, the child’s legal personality will never arise. This principle is of fundamental importance in situations where the testator dies before the child is born. If the child is conceived before the death of the testator and is born alive, it becomes his or her legal heir. If it is not born alive, the legal effects, including the right to inheritance, never occur. This may affect the distribution of the inheritance among the other heirs.
Tip: Every child needs someone to stand up for them, protect their rights and make decisions when they don’t know what to do. Who are the people who can defend the child’s interests in everyday life and who is the person who represents them, for example, in court or when parents disagree?
Our client, Mrs. Eva, contacted us with a question regarding inheritance rights within her family. She was three months pregnant when her husband was tragically killed in a car accident. Her husband left behind a substantial estate, including the family home, savings and investments. When probate proceedings were commenced, the testator’s son from his first marriage, who was the next heir, challenged the unborn child’s right to inherit. He argued that the legal personality of the child had not yet arisen and that it should therefore not be included among the heirs. We confirmed to our client that her unborn child would also be an heir and roughly what she would be entitled to. We also advised her to collect relevant documents, in particular medical certificates of pregnancy, which clearly showed that the child was conceived before the death of the testator. After the child was born, his or her right to inheritance was confirmed, and the family received a key part of the estate.
The abortion law sets the framework within which a woman can decide to terminate a pregnancy. Up to the 12th week of pregnancy, she has the right to undergo an abortion at her own request without having to give reasons. In the second trimester, specifically up to the 24th week, abortion can only be performed in the case of a genetic defect of the fetus or if the healthy development of the fetus is endangered. After this period, abortion is only possible if the life or health of the mother is at risk.
This legal framework in a way contrasts the mother’s right to make free decisions about her body and the protection of her unborn child.
Labour law in the Czech Republic also provides pregnant women with special protection based on their increased vulnerability and specific needs during pregnancy. The Labour Code imposes an obligation on employers to adapt working conditions for pregnant employees so as to minimise risks to their health and the health of the foetus. This obligation relates, for example, to protection from physical stress, vibration, chemicals or hazardous substances.
Pregnant workers have the right to be transferred to other, less hazardous work if their health so requires. The transfer must not lead to a reduction in pay – if the pregnant woman cannot perform her original job, she is guaranteed to be compensated at her original level. Employers are also obliged to release pregnant women from work for regular medical check-ups without any reduction in pay.
The Labour Code also prohibits termination of employment for pregnant women, except in situations where the employer is dissolved. This prohibition applies even if the employer was unaware of the pregnancy, provided that the woman documents the information.
Advances in modern medicine have opened up new possibilities in the field of assisted reproduction and embryo research, which brings not only opportunities but also a number of legal and ethical challenges. The Czech legal order regulates the handling of embryos, in particular in the Act on Specific Health Services and the Act on Human Embryonic Stem Cell Research. These standards set out the conditions under which in vitro fertilisation can be carried out, surplus embryos can be stored by cryopreservation or used for scientific purposes.
The fundamental ethical issue is the definition of the legal status of the embryo. Czech legislation sees the embryo as a potential human life worthy of protection, but not as a full-fledged rights holder. This position allows, for example, the destruction of embryos in the context of scientific research under precisely defined conditions. At the same time, however, the law prohibits the creation of embryos solely for research purposes.
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