Debutul protectiei dreptului la viatã
The Debut of the Right to Life

Summary/Abstract: The article deals with the problem of the beginning of the protection of life, i.e. the moment from which the human being, fully protected by the penal law, can constitute the passive subject of a crime directed against the life of the person. The first part of the paper analyzes the status quo in the Romanian legal system, where two theories are acknowledged in what regards the moment human life begins: the first identifies it with the beginning of the physiological process of birth, while the second situates it at the time extra uterine life begins. Taking into account the wording of the text that incriminates infanticide, the second opinion seems to prevail. The study continues by showing the viewpoints of different legislations in relation with the inception of the right to life. The solutions vary: countries like Ireland and Spain uphold the right to life of the fetus even since conception; England conditions protection on the viability of the fetus, while Germany and Italy identify the debut of the right to life with the start of the physiological process of birth. Starting from a particular case, the French literature has thoroughly discussed whether the fetus can be the passive subject of 2nd degree murder, the majority concluding that the legality of incrimination principle excludes this option. Another problem investigated by the study refers to the balance between the right to life of the fetus and the right to privacy of the pregnant woman. Taking into account the different stages of pregnancy, it has been concluded that in the first trimester the mother’s right to privacy must prevail; this right will be progressively restricted until the moment the fetus is viable, moment in which his life will be fully protected. Although the European Court of Human Rights has refused pronounce itself clearly on the matter, leaving it at the appreciation of the Member States, its decision are carefully analyzed by the author- she argues that they consecrate an implicit right to life of the fetus in the late stages of the pregnancy. Lastly, de lege ferenda, the study recommends that the Romanian system adopts the conception that the right to life begins at the moment of potential viability of the fetus, as done already by other legislations. The main argument is that, once he is able to survive independently, the fetus becomes a human existence, requiring separate protection.

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