Should UK Law Reconsider the Initial Threshold of Legal Personality?: A Critical Analysis

At present UK Law states that the unborn child only becomes a legal person invested with legal rights and full protections, like other human persons, at birth. This article critiques the present legal position of setting the threshold for legal personality at birth, showing its inconsistencies and fundamentally pragmatic basis. Against this background, it is argued that a principled approach towards unborn life is necessary, which reflects in law the reality that the unborn child is a type of human person deserving protection as it develops through the continuum of human personhood – from embryonic personhood, to infant personhood and ultimately into adult personhood. Human personhood is defined as a union of a material and immaterial self, meaning that at every stage of their development they are never a “potential person,” but rather a “person with potential” even if it is not actualized through miscarriage, premature death, or disability. This moral and philosophical reasoning is what justifies protecting the sanctity of unborn life in law. The rest of the article explores and critiques the alternative static legal threshold for ascribing legal personality, at conception, implantation and viability. Having considered the practical moral, legal and philosophical problems of these alternatives; the final proposal for law reform combines all three of these thresholds in a proposal for a “dynamic” threshold for legal personality commencing at conception, which would render birth as an irrelevant threshold for moral and legal reasoning about the unborn
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