(Legal existence extends to the person who does not yet exist)
She had this crown on her head, she was anointed: she was saved.
"Legal personality must not depend on the existence of a Human; legal personality must enable the Human's existence"
The attribution of legal personality is the instrument used to legally recognise someone. Humans become holders of rights, subjects of the law, when they are granted legal personality.
To legally recognise the Human to come is, therefore, to attribute legal personality to him/her (1/). The attribution of personality to this individual brings about numerous changes, including the evolution of the legal status of the embryo (2/b):
"Although he/she does not exist physically, he/she must nevertheless exist legally"
What is legal personality ?
The term "person" comes from the etruscan word "persona", which originally meant "mask" and later "mask-wearer". In ancient times, during costume parties, it was when those without any rights put a mask on their identity that they could feel free as if they had Rights. Consequently, the term "person/personality" became closely associated with the idea of legal recognition. The legal person, the entity with legal personality, is indeed similar to the person wearing a mask in ancient times, he or she possesses an attribute that grants him/her legal recognition and Rights. A legal person is an entity acknowledged by the law and entitled to Rights.
Legal personality can be compared to a guiding star shining over a Human to highlight his/her invaluable worth and to protect him/her from the uncertainties of life. For example, when a slave was freed, he gained legal personality. The whip could no longer be used against him, the slave trader could no longer force him onto a ship. He was no longer treated as property, legally recognised as a mere object; he was legally someone, a person. Thus, he remained on the quay, he was saved. The guiding star was there, not immediately visible, but certainly present, safeguarding him from embarking, like the others, towards starless nights filled with cries and tears.
Like the mask concealing the individual's identity, which made the master, the authority, refrain from acting, legal personality can also be compared to a crown placed on the head of the Human. It causes the other to abstain, one refrains from acting against a crowned head. We have no power over the legal person, but like the king, it is the legal person who is endowed with powers. These powers are Rights, akin to flowers on the crown, which the person can hold and enjoy. The crown blossoms; personality is the pedestal on which Rights lie.
In summary: what is a legal person? In its unitary conception (we are not referring here to groupings of people), the legal person designates the Human (human person) who is legally recognised.
The presented reflection is therefore implicitly an essay on legal personality, as it concerns the Human to be legally recognised.
Legal personality is like the crown that grants rights to the entity it adorns.
Among the different types of legal persons, we distinguish, on one hand, natural persons and, on the other hand, juridical persons. A natural person refers to a Human endowed with legal personality, while a juridical person is a collective entity (companies, associations, etc.) endowed with legal personality. Since, the reflection presented herein focuses on the legal recognition of the Human in its unitary conception, the reader understands that juridical person are not the subject of the writing.
It should be added that the term "legal person" is sometimes used to refer to the "capacity" to act within the legal sphere (such as signing contracts, filing legal claims, etc.). This interpretation of the term is a restricted approach. For example, newborns cannot file a legal claim (as they lack legal capacity); however, they are still legally recognised as persons—that is, Humans acknowledged and protected by the law.
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"Legal personality is this star that must already shine above his presence tomorrow in order to make him a reality tomorrow walking the streets of the city"
# The human person to come is a legal person.
Legal personality can be compared to a crown on which Rights are placed. Until today, we had always failed to understand that a Right must be granted to the Human; thus, we had always failed to adorn the crown with this Right. More specifically, we had always failed to understand that it is the Human yet to come who must be granted this Right; thus, we had always failed to understand that the crown must also be placed on the head of the Human yet to come.
The Human yet to come must be granted the Right to be; this Right grants this Human a legal existence and makes him/her a legal person.
The legal understanding that has just occurred is therefore expressed as follows:
Human person to come
=
Legal person
Today, it is understood that the Human to come must be granted the Right to be, that he/she must therefore be recognised by the Law, that he/she must be a legal person.
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# The new function of legal personality.
Legal personality, the blossoming crown, the foundation upon which Rights rest, must be adorned with this additional Right, this extra flower. Yet, to endow personality with a new Right is to assign it a new function. Legal personality, the protective star, must hover above the one yet to come, to ensure his or her existence tomorrow. The new function of legal personality - arising from the Right to be/exist - is to safeguard and enable human existence.
Cataclysm in legal thought!
Indeed, currently, Humans must exist, in order to be granted legal personality. It is the physical existence of the Human that leads to his/her legal existence. The answer to this well-accepted data today is:
The Human must not first exist physically in order to exist legally ; the Human must first exist legally in order to exist physically.
Legal science is therefore called upon today to understand that legal personality must appear not with, but before the Human's existence. It is invited to understand that the Human's existence must no longer be a condition for the appearance of legal personality, but one of its objectives, the first of its objectives.
There is a Human over there who is walking on the moment to come. He is a young man and he walks the streets of a city. This is how we conceive the future, and we say that this future must be tomorrow a reality. This is what our Will expresses, and for this reason, we place the protective star above that future moment, above that 'over there'. It is this star that prevents him today from being carried away while he is still a child, it is this star that keeps him ashore today, and that allows the young man he is destined to become to walk tomorrow the streets of this city, full of noise and life. The legal guardian angel, through the recognition it grants from today, will have enabled the supposed and desired existence to become a real existence tomorrow.
While the Human does not yet exist, while he has not yet arrived, the guiding star must already be there, shining. Its light, revealing the preciousness, must already come to us today.
The star must already today shine above him for him to be among us tomorrow
"The human person that the embryo is destined to be tomorrow is already a legal person today"
The embryo is destined to become a human person in the future. The embryo is therefore tomorrow this person who is today a legal person.
The attribution of legal personality to the Human that the embryo is destined to become leads to this conclusion: even though there is no human person at the present moment, there is still a legal person at that moment.
Being in front of an embryo, we are in front of a legal person.
The Human that the embryo is destined to become emerges today from this legal obscurity in which he has always been. The light of the Law is shed upon him, the star is placed above his head, and as with any legally recognised person, one is obliged to respect his Rights, and concerning this person, more specifically, his Right to exist.
However, by killing the embryo that this Human is today, we deprive this Human of existence. In doing so, we therefore violate this Human's fundamental Right to exist and to live his/her moment of life.
Extending the Law and the recognition of the symbolic crown to the Human to come radically transforms the existing paradigm regarding embryos: it is no longer possible to destroy the embryo, as such an act would infringe upon the Right to be of this newly crowned Human.
This upheaval in the legal regime of the embryo results in an evolution of its legal status. In the following section, we will examine this evolution of the legal status of the embryo due to the personality attributed to the human person that it is destined to become tomorrow.
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"The legal status of the embryo is no longer judged based on its current state, but on the future human it will become"
# The current legal status of the embryo in french law: the potential human person.
The legal regime of the embryo currently depends on what it is, and on this point, it has not been considered that the embryo is someone. In addressing the question of whether the embryo is a human person, the french national ethics committee (opinion of 22 May 1984) qualified the embryo as a "potential human person". This qualification defines the embryo as an entity with the potential to become a human person (someone). However, to have the potential to be, in contrario, is not to be. According to this qualification, the embryo is therefore not considered a human person.
Since it has been judged that the embryo is not a human person, it is consequently not considered a legal person, a subject of Law. Law is divided into two categories: things and persons. So, such a qualification tends to place the embryo in the category of things, entities that do not have inherent Rights, and can be subjugated to the exercise of rights.
It should be noted, however, that alongside the notion of "... potential", the retained qualification also emphasizes the terms of "human person...". These terms serve as a counterbalance to the term of "potential." While the term of "potential" distinguishes the embryo from a fully formed Human, these other terms remind us of the relationship that exists between the embryo and the Human. They underscore that the embryo belongs to the human species and, therefore, deserves to be treated with a certain degree of consideration.
This qualification of "potential human person" therefore says a lot. It says both that the embryo is to be protected because of what it is (a being belonging to the human species) and that it is also possible to dispose of it because of what it is not (a Human/human person).
Regarding the protection of the embryo, it is established as a principle in article 16 of the Civil Code and reiterated in article 1 of the french abortion law: "the respect of the human being from the beginning of its life" (human being = a member of the human species). More concretely, this principle is enshrined by the prohibition of the industrial and commercial exploitation of the embryo (art L.2151-3 of the french public health code) as well as by the prohibition of using the embryo for research purposes (art L.2151-5 paragraph 1 of the french public health code). In terms of case law, the protection of the embryo is less evident. However, mention should be made of the judgment of the Court of Justice of the European Union, Brüstle v. Greenpeace (18/10/2011). In this case, the CJEU ruled that an invention cannot be patented if its implementation involves the destruction of human embryos.
Although the embryo is currently protected, it is widely acknowledged that this protection is quite limited. Everyone knows the law allows many actions regarding embryos. Indeed, since the embryo isn't a human person, its protection is based on a principle, not a right. And while rights must always be respected, principles are often overlooked. The case of the embryo prove it. The embryo is protected only insofar as such protection does not inconvenience anyone or conflict with our "interests". In such a situation, priority is given to the one who is truly considered someone by the law. The human person prevails over the potential human person. If the destruction of the potential human person can be advantageous to the recognised human person, then the protective principle becomes blurred, weakened, or even abandoned. And over the last decades, the human community has found that, in many cases, the destruction of the embryo could be 'beneficial' to it. As a result, the protection of the embryo has been continuously adjusted, and now, it is subject to numerous exceptions. It started with the abortion law. It was considered that the woman's interest - initially in cases of distress - was superior to that of the embryo. While the first sentence of the first article of the abortion law emphasizes the principle of "respect for the human being from the beginning of its life", the subsequent sentence stipulates that 'in cases of necessity,' it is permissible to deviate from the aforementioned principle. Moreover, the various bioethics laws passed in recent years (2004, 2011, 2013) have frequently revisited the prohibition on using the embryo for research purposes. Today, our control over the embryo has reached a point where we may question whether the law still upholds article 16 of the Civil Code and the Oviedo Convention on Human Rights and Biomedicine, which, in its Article 18, paragraph 1, states that research on the embryo must ensure the 'adequate protection of the embryo'!
To summarise, the current status of the embryo places it in an intermediate position, straddling the two categories that divide the law – the summa divisio: things and persons. The embryo possesses elements of both categories, but over time, it tends to be increasingly more and more assimilated to a thing. This specific legal regime stems from its unique characteristic: being related to Humans (as it has the potential to become one) without being recognised as one.
(For the current legal position on the embryo, please refer to the page 'Current understanding of HL and the case of the embryo (IIIA, 2/).
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# The new status of the embryo: the legal person by derivation.
With the attribution of legal personality to the Human to come, the legal status of the embryo is bound to evolve. Indeed, the legal status of the embryo must no longer depend on its current state, but on the legal person that is the Human it is destined to become.
The embryo must now be treated in a way that respects the Right to exist of the person it is destined to become. The Right to exist of this person therefore creates a new obligation: to preserve the embryo. This obligation has two facets: a negative one, not to destroy the embryo, and a positive one, to protect it. Respect for this right hinges on respect for this obligation. This right is absolute and inviolable; consequently, so is the obligation arising from it.
With the extension of legal personality to the Human to come, the obligation to preserve the embryo—to not destroy it—takes on an entirely different form. It loses its completely relative character, which is dependent on contexts and interests external to the embryo, and instead acquires a value rooted in the person the embryo is destined to become. The protection of the embryo becomes as inviolable as the Right to exist of this person.
This new protection of the embryo - which is not relative but absolute and does not stem from a simple principle but from a Right - must be conferred through the attribution of a new legal status to the embryo. This status can be referred to as 'legal person by derivation', as it derives from the legal personality to be attributed to the human person that the embryo is destined to become tomorrow.
It is therefore necessary today to grant this new status to the embryo. In doing so, the law will demonstrate that it is concerned not with what the embryo is (the Error), but with who the embryo is destined to become tomorrow (emergence from the Error). While the current legal status of the embryo leans towards categorising it as a thing, this new status will lean towards categorising it as a person.
"The embryo must be granted the status of a 'legal person by derivation' which will protect it based on the person it is destined to become tomorrow and independently of its current state —whether it is considered someone or not"
The embryo is granted today the status of a 'legal person by derivation'.
The legal person by derivation must be preserved because the preservation of the person it is destined to become depends on it.
The legal person by derivation is protected not because of what it is, but because of the person it is destined to become. The legal person by derivation is a legally protected entity, whether or not it is someone.
On this point, it should be noted that the Human who currently exists should also be protected based on the Human he or she is destined to become. Therefore, every existing Human should also be granted the status of a legal person by derivation. Every existing Human must have two statuses: that of a person - which encompasses various rights that he or she exercises simply by virtue of existing, such as the right to freedom of movement or the right to freedom of expression - and that of a person by derivation, which relates to the Right to be of the person she/he is destined to become.
If the protective star is to be placed above the Human to come, if this Human is to be provided with the flowery crown, then a question arises: of all these flowers, of all these rights grafted on the crown, is there only one that this Human can enjoy?
Legal recognition should not be confined to a restrictive attribution of rights. Since the Human to come is to be legally recognised, he or she must be able to enjoy all the Rights that it is possible to recognise him or her. However, naturally, the differences between legal persons lead to a difference in access to the rights conferred by this status. We can all enjoy the flowers of the crown, but each one enjoys them according to his or her ability to grasp them. The Human to come, because of his/her own characteristics - he or she does not exist yet - cannot enjoy as many Rights as the person who exists. For obvious reasons, he or she cannot, for example, hold political rights such as the right to vote or civil rights such as the right to contract. However, if this Human must be, he must be in the best conditions. We cannot make his or her presence tomorrow an obligation to be respected and accept that between the moment of his or her conception and the moment of his or her effective existence, his or her interests may be affected. Therefore, if this Human cannot enjoy all Rights, he/she cannot enjoy only one. If he/she cannot contract, he/she could, for example, still be designated as the beneficiary of a contract. In matters of inheritance, a person who is only in the embryonic stage when the estate is opened cannot be deprived of his share, and his personality would thus grant him, in addition to the Right to be, the Right to be "taken into account".
This attribution of rights to the Human to come, other than the Right to exist, such as the right to own property, would overturn a currently enforced rule that represents a legal inconsistency: the Infans Conceptus rule. This leads us into a more in-depth discussion, which is detailed in the attached PDF at the bottom of this page.
A Right to legal personality (i.e. legal recognition) is enshrined in Article 16 of the International Covenant on Civil and Political Rights, which states: "Everyone shall have the right to recognition everywhere as a person before the law". "In light of this new understanding of legal personality, the Human Rights Committee should issue opinions and recommendations urging all States parties to the Covenant to promptly recognise legal personality for the Human to come.
It should be noted that this article was not originally intended to be invoked. Its function was primarily commemorative; its purpose was to remind the human community how the worst human tragedies begin.
