The legal status of human embryo and fetus has been the subject of discussion by numerous theoreticians. However, there is no consensus at the international level on whether the term “everyone” includes the human embryo and fetus and whether it has fundamental human rights, the first of which is the human right to life.

Legal personality is the basis for the social recognition of human beings. A number of international legal acts prescribe the fundamental right to legal recognition of all human beings without exception. The Universal Declaration on Human Rights in Article 6 stipulates that “Everyone has the right to recognition everywhere as a person before the law.” The International Covenant on Civil and Political Rights in Article 2 stipulates that “each State Party…undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized… without distinction of any kind such as race, colour, sex, language, religion, political and other opinion, national or social origin, property, birth or other status”.

Does the term “everyone” refer to every human being and at the same time every person, or does it refer to some human beings, some of whom would not be persons? International legal documents do not define a human being, nor who is considered a person. “Human being” is a broad term that includes all members of the species homo sapiens, and each one is a human being, that is, a person.

Positive legal systems, international or national, refer to human beings in general, as a species of homo sapiens, which includes every single person, that is, man.

If everyone is equal before the law, and everyone refers to human beings, the species homo sapiens, can we conclude that the human embryo is excluded from the term ”everyone” and according to what criteria?

It has been scientifically proven, and the facts of embryology and genetics (DNA, blood, and tissue) dispel all doubt, that fertilization creates a new human being with a genetic code and undeniably human characteristics. There are many medical viewpoints on this.

A human embryo/fetus is a human (not a thing or an animal), but at the very beginning of development, which means that it has not developed the typical capacities of an adult and the rights and obligations associated with these capacities. However, by recognizing the intrinsic dignity of all human beings, international legal acts do not differentiate between developed and less developed human beings. Although a human being is not defined in international legal acts, no category of human beings is singled out as a non-person or a “lesser human being” and all human beings are considered equal in fundamental dignity. Human beings in conditionally so-called “borderline situations”, such as persons with disabilities, children, and human beings in a coma, are not separated from legal subjectivity, based on some “deficit” that the human embryo/fetus also possesses.

Can we then claim that the human embryo/fetus also possesses the right to life under some international legal instruments?

Among the provisions of the international human rights instruments that prescribe the right to life of all human beings, it is explicitly stated that “all human beings” have the “right to life”, which would imply that the human embryo/fetus as a human being is subject to the application of the aforementioned provisions. The Convention on the Rights of the Child defines a child in Article 1 as “every human being below the age of eighteen years”, and Article 6 stipulates that “States Parties recognize that every child has the inherent right to life.” The Convention on the Rights of the Child does not explicitly mention the unborn human being, but it does not exclude him. The Preamble of the Convention expressly refers to the Declaration on the Rights of the Child of the United Nations (1959), which states the need of children for special care and protection, “including appropriate legal protection, before as well as after birth”, which refers to the conclusion that an unborn human has the right to adequate protection before birth, which would primarily imply the right to life, because what protection is more important than of that right, without which other rights do not exist?

Article 6, paragraph 5 ICCPR prohibits the execution of the death penalty on a pregnant woman. This “could also imply the unborn’s right to life, which cannot be realized by the death of the mother, therefore this provision can be interpreted not only as a ban on the death penalty (for those born) but also as a protection of unborn children from death caused by human actions.” From the travaux préparatoires of the ICCPR, it is unequivocally determined that the main reason for Article 4 (now Article 6, paragraph 5) of the original text, which stated that the death penalty may not be carried out on a pregnant woman, was to protect the life of the unborn human. This was confirmed by the Secretary General of the UN in his Report in 1955, in which it was stated that the same paragraph was inspired by humane reasons, but also by reasons to protect the interests of the unborn human. Therefore, it is clear that Article 6 cannot be interpreted in such a way as to protect human life by setting time limits. Moreover, in Article 24, paragraph 1, it is determined that “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” If unequal treatment of illegitimate children compared to children born from a lawful relationship or children conceived naturally compared to those conceived with medical assistance is considered as discrimination based on birth, we could, if no one has so far contested the personality of an unborn child, also consider it discriminatory to give priority in care (which is necessary with regard to health, medical and living status) to a born child in relation to an unborn child.

From all the aforementioned provisions, we can conclude that the international legal framework does not exclude the human embryo from the concept of the human being, is therefore a human being in accordance with the international law concept of a human being, as well as a legal subject, with the right to life.

Katarina Krasić is a graduate of the Faculty of Law, University of Zagreb in 2011. She completed her postgraduate specialist studies in Rijeka in 2014. That same year, she interned for the European Parliament and the European Commission. Subsequently, she worked in the Croatian Ministry of Labor and Pension System from 2015 to 2017. Since 2017 she has been working in the Croatian Ministry of Foreign and European Affairs, in the Human Rights Service, the UN and international organizations Sector. In 2017/2018, she completed a one-year professional study at the Diplomatic Academy and the UN Academy. She is currently a Doctoral student at Pázmány Péter Catholic University in Budapest, Hungary.