La construction par la doctrine dans les manuels de droit civil français et québécois du statut juridique de l’embryon humain. Volet 1 : la maxime « infans conceptus »
Gidrol-Mistral, Gaële; Saris, Anne
Abstract : In civil law, “the unborn child” is inextricably linked to the Roman maxim of infans conceptus. It is through this concept that civilists address the issue of the legal personality of the embryo. To implement this legal technique, scholars of the civil law tradition utilize four different interpretative theories: that of a stricto sensu legal fiction, that of an actual legal personality, as well the concepts of a conditional legal personality subject to either a suspensive or resolutory condition. Underlying these concepts is the legal status of the embryo, considered to be an “object” for the tenants of the idea of a legal fiction, a “person” for those embracing the idea of a real legal personality or a status dependent on a resolutory condition (precarious legal personality), and a “sui generis category” for those advancing the idea that legal status is subject to a suspensive condition (anticipated legal personality). This essay, through a detailed analysis of the terminology employed in civil law textbooks dealing with the subject of civil rights, as well as four articles written by Quebec authors in the same subject area, identifies the interpretative theory surrounding the use of the maxim infans conceptus that each respective author uses. This analysis has revealed certain divergences between the presentation that is made surrounding the embryo’s legal status (object, person, or sui generis category), and the ensuing applicable legal rules. This essay highlights and updates certain debates surrounding the concept of infans conceptus, illustrating the difficulty of elaborating a coherent theory in this area. This essay notably discusses the type of rights generally recognized for an embryo (patrimonial and/or extrapatrimonial rights), identifies certain mechanisms aimed at protecting the “unborn child” (conservative or executory measures), as well as the possibility of applying the Latin maxim infans conceptus to ex utero embryos.
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