What are the rights of an unborn child?

Quick Overview: What Rights Does an Unborn Child Have?

• An unborn child is not yet a natural person with full legal rights.
• Under the Civil Code, a conceived child is treated as if born if it is in the child’s best interest and if the child is born alive. This principle is known as nasciturus.
• For example, a conceived child may inherit if it was already conceived at the time of the decedent’s death and is subsequently born alive.
• Criminal law protects pregnancy primarily through criminal offenses related to unauthorized termination of pregnancy and the protection of pregnant women.
• The protection of the unborn child is not absolute. The legal system balances this protection, in particular, with a woman’s right to health, privacy, and autonomy regarding her pregnancy.

Are you dealing with an inheritance matter, paternity determination, or another family law issue involving an unborn child? Our attorneys will assess your specific situation and explain how to protect the child’s rights in a timely manner.

When does legal protection of life begin?

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 wording leaves room for interpretation, as it does not clearly specify exactly when legal protection of life begins. While a child acquires full legal personality at birth, the issue of protecting an unborn child remains a subject of debate.

An unborn child is not a full-fledged holder of rights, but is granted certain protections. These protections are subsequently reflected in various areas of law, such as civil and criminal law. For example, the Civil Code stipulates that a conceived child is treated as if born if it is in the child’s best interests, but only on the condition that the child is born alive.

Birth represents the pivotal moment when an unborn child becomes a full-fledged legal entity. Under Czech law, birth is defined as the moment when the child leaves the mother’s body and begins to breathe independently. This legal moment is crucial for the recognition of legal personality and the full protection that the Czech legal system guarantees to every natural person from birth until death.

The Unborn Child in Criminal Law

Criminal law in the Czech Republic primarily addresses the protection of the unborn child indirectly, through the protection of pregnant women. Acts against a pregnant woman that result in injury to or the death of the fetus are classified as criminal offenses, including harsher penalties for attacks on pregnant women under the Criminal Code, which considers this circumstance a particularly aggravating factor. However, the unborn child is not directly the subject of criminal law protection, but rather an object whose protection is based on the mother’s bodily integrity.

The elements of criminal offenses related to abortion also represent a significant legal provision, particularly when performed unlawfully or against the woman’s will. The woman herself, however, is never criminally liable for an abortion—criminal liability applies only to physicians or other persons who perform the abortion unlawfully.

Specific protection for the fetus can be found in the elements of the crime of murder of a newborn child by the mother (Section 142 of the Criminal Code), which takes into account the psychological and social circumstances associated with childbirth.

Nasciturus and the Legal Status of the Conceived Child

The Latin term “nasciturus” refers to a conceived but not yet born child. The Civil Code is based on the presumption that a conceived child is deemed to have already been born if this is in the child’s best interest. However, this is conditional on the child subsequently being born alive.

Thus, the child does not possess full legal personality prior to birth. The legal status of the unborn child is conditional, and the legal system protects the child’s future rights particularly in cases where waiting until birth could harm the child’s interests.

An Example from Legal Practice

A client, Ms. Eva, contacted us with a question regarding inheritance rights within her family. She was three months pregnant when her husband tragically died in a car accident. Her husband left behind considerable assets, including the family home, savings, and investments. When probate proceedings began, the decedent’s son from his first marriage—who was another heir—challenged the unborn child’s right to inherit. He argued that the child had not yet acquired legal personality and should therefore not be included among the heirs. We confirmed to our client that her unborn child would indeed be an heir and outlined the approximate extent of the child’s entitlement. We also recommended gathering relevant documents—primarily a medical certificate of pregnancy—that clearly demonstrated the child had been conceived before the decedent’s death. After the child’s birth, their right to the inheritance was confirmed, and the family thus received a key portion of the estate.

Are you expecting a child and simultaneously dealing with the estate of the child’s parent or another relative? We can help you establish the rights of the unborn child and ensure that the child is properly accounted for in the probate proceedings.

The Mother’s Rights vs. the Rights of the Unborn Child

The abortion law establishes the framework within which a woman may 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 provide a reason. In the second trimester—specifically up to the 24th week—an abortion may be performed only in the case of a genetic defect in the fetus or if the healthy development of the fetus is at risk. After this period, an abortion is permitted only in cases where the mother’s life or health is at risk.

In a sense, this legal framework creates a tension between a mother’s right to make autonomous decisions about her own body and the protection of the unborn child.

Enhanced Protection for Pregnant Women in the Workplace

Labor law in the Czech Republic also provides special protection for pregnant women, based on their increased vulnerability and specific needs during pregnancy. The Labor Code requires employers to adapt working conditions for pregnant employees in order to minimize risks to their health and the health of the fetus. This obligation applies, for example, to protection against physical strain, vibrations, chemicals, or hazardous substances.

Pregnant employees have the right to be reassigned to a different, less hazardous job if their health condition requires it. Such a transfer must not result in a reduction in pay—if a pregnant woman is unable to perform her original job, she is guaranteed continued pay at her original rate. Employers are also required to grant pregnant women time off for regular medical checkups without any reduction in pay.

The Labor Code also prohibits the termination of pregnant women, except in cases where the employer ceases to exist. This prohibition applies even if the employer was unaware of the pregnancy, provided the woman can provide proof of it.

Modern Medicine and Research

Advances in modern medicine have opened up new possibilities in the field of assisted reproduction and embryo research, which present not only opportunities but also a number of legal and ethical challenges. The Czech legal system regulates the handling of embryos primarily through the Act on Specific Health Services and the Act on Research on Human Embryonic Stem Cells. These laws set forth the conditions under which in vitro fertilization may be performed, surplus embryos may be stored using cryopreservation, or they may be used for scientific purposes.

A fundamental ethical question lies in the definition of the legal status of the embryo. Czech legislation views the embryo as potential human life worthy of protection, but not as a full-fledged holder of rights. This stance 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.

The legal status of a conceived child always depends on the specific situation. Different rules apply to inheritance, to medical interventions involving a pregnant woman, and to employment relationships. Have your case reviewed by an attorney before a dispute arises or assets are divided.

Summary

Under Czech law, the rights of an unborn child are not identical to those of a person who has already been born. A conceived child does not have full legal personality, but the principle of nasciturus allows for the protection of its interests, particularly the right to inheritance, provided it is subsequently born alive. The protection of the unborn child also applies in criminal, healthcare, and labor law. However, this protection is not absolute and, in certain situations, is balanced against the pregnant woman’s right to health, privacy, and personal autonomy. The legal status of a conceived child therefore always depends on the specific circumstances of the case.