The Inception and the Cessation of the Penal Protection of the Right to Life

AuthorAlexandru Boroi, Florentina Puçca
PositionAl. I. Cuza' Police Academy, Faculty of Law - Danubius University of Galati, Faculty of Law
The Inception and the Cessation of the Penal Protection
of the Right to Life
Alexandru Boroi1
1Al. I. Cuza” Police Academy, Faculty of Law,
Florentina Pușcă2
2Danubius University of Galati, Faculty of Law,
Abstract: Over the centuries, most of the religious and philosophical movements all over the world have firmly
condemned any act that could prejudice the life of a human being. Without respecting the right to life, the human
society, as a social type of organization, would disappear. The murder doesn’t only represent the action of killing
a person but also the result of this action, which is taking the life.
Key words: fetus, right to life, persons’s death
The right to life is “the most fundamental” right of an individual, according to the terms of the Committee
of Human Rights of the U.N.1 This right is stated in every modern constitution and its protection is the
object of the most exhaustive regulation in any criminal code. The right to life has two essential
components: a personal interest, of the protected individual, which is strictly connected to the human
being, starts and is protected from the moment the individual is born and ceases once he dies and a
detached interest that doesn’t belong to the human being, but to the society in general, which is extremely
strong2 and protected prior to the moment the person is born and ceases before his/her death. The criminal
legislation concerning the crimes against life serves both these interests, without the necessity to formulate
a distinctive law, in order to protect these issues of the right to life.
The United States has adopted, in numerous states, the viability theory, asserting that the unborn child is
considered to be a person. According to this jurisdiction, starting with the 28th week, when the fetus
becomes viable, it can be considered a person, so that any type of abortion, in any circumstances, can be
banned by criminal law. The difference between the human embryo and the fetus is made after the
evolution of the organism, starting with the moment of conception, until approximately the end of the
second month, when the embryo becomes a fetus.
In Great Britain, the jurisprudence allows abortion until the viability stage, but the fetus doesn’t benefit
from the same status as the born child. The viability on which the protection of life depends doesn’t imply
only the possibility to live, but also the one of independent survival.
The German Constitutional Court decided that criminal law has to protect human life while it develops, at
least as long as this protection doesn’t involve excessive prejudice to the physical and moral health of the
R. Chiriţă, European Convention of human rights. Comments and explanations, Ed. C.H. Beck, Bucharest, 2007, p. 81.
Idem, p. 83.

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