> Case law on accidental harm to the life of the foetus:

•   Golfier v/Vo. Lyon Criminal Court, June 3, 1996:

In this instance, when her patient came for a pregnancy check-up, an obstetrician was negligent in verifying her identity, confusing her with another patient of the same name, and proceeded to remove an IUD. This procedure punctured the amniotic sac and endangered the fetus. A therapeutic abortion had to be performed.
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The doctor was charged with manslaughter. Nevertheless, on June 3, 1996, the Lyon Criminal Court ruled that the offense was not established, stating that, 'since a fetus is only considered viable from the age of 6 months, [...] the fetus, aged between 20 and 21 weeks, was not viable [...] it was not considered a human person...'.
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The foetus is considered viable when it can sustain life outside the mother's womb. Advocates of this criterion argue that this ability signifies the foetus's independence from the mother and, consequently, its 'individuality.' Would the foetus be considered a distinct individual once it becomes 'viable'? The issue is that the moment of viability is not constant. The ability of a foetus to survive outside the womb depends on the technological advancements of society. Foetuses that wouldn't have survived in previous years can now do so thanks to medical advances. Should we then think that a foetus that was not a person yesterday is a person today thanks to the progress of science? Should we consider that a fetus, which is not considered a person today, may become a person tomorrow due to advancements in technology that enable its survival? Absurdity! Humanity is a universal and immutable characteristic that cannot change over time. The quality of human person of a foetus must derive from its intrinsic nature, rather than being contingent upon external factors, such as the level of technological advancement within a society. Such a criterion is utter nonsense. Strangely, there is a global consensus on this criterion! There are things in this world that are difficult to explain.

However, critiquing this criterion is not the focus of this essay. Regardless of the reasons why numerous jurisdictions employ this standard, the fact of using it to rule on the death of a fetus makes it very clear that the protection of the fetus currently depends on what it is (viable or not).

This judgment was appealed.

•    Court of Appeal of Lyon, March 13, 1997 :

The Court of Appeal overturned the first instance judgment, stating that "the anatomical-pathological examination concluded that the foetal lung was between 20 and 24 weeks old (...) an age very close to that of some foetuses that have survived in the United States". Additionally, it added: "the photographs (...) depict a perfectly formed child whose life was tragically cut short due to the defendant's negligence". 
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The words "perfectly formed child" clearly suggest that the foetus must have become a person for the violation of the law to be established.
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The doctor appealed. The Superior Court overturned the challenged decision based on the principle of strict interpretation of offenses and penalties. In other words, since there is no law criminalising the taking of a foetus's life, the Court of Appeal was not authorised to do so (It can be observed that the legislators have not addressed this type of offense because they have chosen not to make a ruling on the question: "foetus = someone?". Yet, this would be the foremost question to be posed, considering the current state of knowledge regarding the Human to be protected. Regrettably, ideology has prevailed and stifled any government or Assembly initiative in this regard. This is clearly evidenced by the fate of the Garraud amendment concerning the offense of involuntary termination of pregnancy).

•    Case Vo v. France. European Court of Human Rights, July 8, 2004.

This is likely the most emblematic decision on the subject, continuing the Lyon case that was brought before the European Court of Human Rights.  
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The applicant, Ms Vo, having exhausted all national remedies, referred the case to the European Court of Human Rights on the basis of Article 35 of the European Convention. She accused France of violating Article 2 of the Convention, which stipulates that "everyone's right to life shall be protected by law". 
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The words of Ms Vo in her argument for the applicability of Article 2 are quite revealing: "The conceived and unborn child is not a mass of cells, nor is it a thing; it is a person". The Court may have changed, but the argument remained consistent. The applicant contended that her foetus was a person.
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In its decision, the Court described the legal status of the foetus in different member States of the Council of Europe as well as in various international treaties, and then concluded: "The Court is convinced that, at this time, it is neither desirable nor even possible to provide an abstract answer to the question of whether the unborn child (i.e., the fetus) qualifies as a 'person' within the meaning of Article 2 of the Convention". The subject of the foetus is highly politicised (as it underlies the delicate question of the right to abortion) and in a territory as extensive as that governed by Council of Europe legislation, positions on this matter vary significantly. For example, English and Polish laws are quite different. Therefore, in order to avoid offending the diverse sensitivities and beliefs present in this vast territory, the Court chose not to take a position. It opted not to make a ruling and left it to the States to legislate. This position is highly questionable, because on a subject as precious as the beginnings of humanity, the emergence of the Human, it results in creating as many possibilities, as many opinions, as there are states. It essentially reduces the universal concept of humanity to the individual opinions of each State. It is possible to delve further into the discussion of this decision, but once again, that is not the focus of this essay.

In this decision, the Court did not provide an answer to the question of whether the foetus is a person, but it explicitly stated that, in its opinion, the protection of the foetus hinges on the answer to this question.

‍•    Metz Court of Appeal, 3 September 1998.

In this case, a woman was involved in a road traffic accident when she was six months pregnant. She gave birth to a stillborn child four days later.
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In the first instance, it was considered that the foetus that was the victim of the accident was "viable". However, on 3 September 1998, the Metz Court of Appeal overturned this judgment on the grounds that "there can only be homicide of a child whose heart was beating at birth and who has breathed". It was no longer a question of viability, but of birth and breathing. New criteria, but still the same idea! As in the other cases, the argument is once again totally focused on what "was ... at the time of the event". A consideration always turned on the moment of the death and on what was at that moment the killed foetus. It was only about the foetus, never about the child who, on that day, while she was waiting impatiently for the Court's decision, was not here, at her mother's side.

This case once again demonstrates a complete lack of identified knowledge.
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Strangely, while the Court of Appeal had aligned its decision with the Court of Cassation's case law, the argument of viability was advanced to the Court of Cassation : « causing the death of an unborn child constitutes the offence of manslaughter if the child was viable at the time of the act ». The Court of Cassation, on 29 June 2001, naturally rejected this request on the grounds of the strict interpretation of offences and penalties.

•    Versailles Court of Appeal, 19 January 2000.

While a woman was in the clinic for delivery, an abnormality in the fetus' heartbeat occurred. The midwife decided not to call the doctor. The next day the doctor found that the foetus had died in utero.

In the first instance, the doctor was acquitted, but on 19 January 2000, the Versailles Court of Appeal overturned this judgement and confirmed the charge of homicide on the basis that "the foetus was 50.5 cm tall and weighed 2.5 kg", that the photos showed "the image of a perfectly conformed baby", that "this child was full term" and that "it had the capacity to survive on its own, having a humanity distinct from that of its mother.".

Once again, the Court based its decision on the question of whether the killed foetus was a person. Always the same approach, always the same mistake.
  
The Court of Cassation overturned the decision of the Court of Appeal on the basis of the strict interpretation of the criminal law.

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> Constitutional Court decisions on the legalisation of abortion:

It is possible to take up the debate initiated in France in 2001 by the law on voluntary interruption of pregnancy and contraception. In accordance with Article 61 of the Constitution, senators called upon the Constitutional Council to challenge the provision of this law that extends the deadline for seeking an abortion from 10 to 12 weeks of pregnancy. Among the arguments presented, it was asserted that at 12 weeks, "the unborn child (the term used to refer to the entity from conception to birth)" is no longer an embryo but rather becomes a foetus: "the twelfth-week threshold leads to it being regarded (...) as having progressively developed into a foetus". According to this argument, a distinction should be drawn between the abortion of a foetus and that of an embryo, as the foetus, unlike the embryo, is considered a person. It was also stated that "medical progress (...) allows for the sex of the unborn child to be reliably determined from the tenth week onwards". Unequivocal argument. It clearly issues a directive not to permit abortion at 12 weeks by focusing on what the "unborn child" is at this stage of development: an entity that has transitioned into a foetus, an entity with a sex, and so on.

The Council rejected the appeal, validating the time limit. However, in their decision, the judges of the law made it clear that the answer to the question of respecting the embryo (or the foetus) lies in the erroneous question: "from what stage of gestation is there a "human person" with the right to life? (the precision "with the right to life" is redundant because if there is a human person, there is a right to life. Too many words, unnecessary words)". The Council, like many Constitutional Courts, reiterated that the scope of its function (constitutional review) did not empower it to address this question: "in the absence of constitutional guidance, the answer to this question belongs to the realms of metaphysics and medicine, not to the judge of laws". It referred the question to the legislator, stating: "it is for the legislator to establish the threshold, during gestation, beyond which there is a 'human person'". On at least three occasions, the Council has restated the erroneous question verbatim. How could it be more explicit? 

Let's cite some decisions from other constitutional courts:

In a case from November 23, 1998, the Hungarian Constitutional Court stated that it was not within its purview to determine: "whether the foetus is a person (i.e. someone)". It deferred this question to the Parliament for resolution. The Austrian Constitutional Court, more explicitly, in its decision of October 11, 1974, ruled that "the unborn child is not a person". Two decisions, once again, based on the response to the erroneous question.

On the other side of the Atlantic, in a decision dated November 16, 1989, Daigle, the Canadian Supreme Court also held that "the embryo is not a person". In the United States, the landmark 1973 Supreme Court decision, Roe v Wade, recognised a woman's right to have an abortion up to the point of viability. The Court estimated viability to be around the 7th month of pregnancy (today, foetuses of 5 months can survive). In its decision of June 29, 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the same Supreme Court reaffirmed a woman's right to have an abortion before the date of fetal viability: "The U.S. Constitution prohibits states from imposing undue burdens on the exercise of a woman's right to choose whether or not to have an abortion during the 'previability' period of pregnancy".
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These few enumerations of constitutional decisions validating abortion laws show that constitutional courts have also always ruled on the subject of the embryo (or foetus) only on the basis of what it is and never on the basis of the one it is destined to be.

These brief references to constitutional decisions upholding abortion laws demonstrate that constitutional courts have consistently ruled on the issue of the embryo (or foetus) solely based on what it currently is, rather than on the one the embryo is destined to become.