Wednesday, March 3, 2021

Commencement of physical personality

(Source: Ethiopian Law of Persons:  Notes and Materials

Elias N. Stebek)

 

“The human person is subject of rights from its birth to its death”

 (Article 1 of the 1960 Civil Code of Ethiopia)

 

The words “human person” (under Article 1) refer to anyone who is member of mankind; i.e. to anyone who has the distinct features of a human being.  Deformities and handicaps are acceptable as long as they are the sorts that could occur through various natural or other misfortunes.  But in case the new-born offspring’s variation from the common features of human beings is such that coining some other new word becomes necessary, it can’t apparently be considered a human person.

 

 

Physical personality begins from birth and lasts until death.  Birth is thus the beginning of physical personality, and will be briefly discussed below.

 

 

      Birth

 

The term “birth” may create some problems of interpretation.  Black’s law dictionary defines birth as “the act of being wholly brought to separate existence.” When is a child considered to have a separate existence?  “In this respect one tends to make a distinction between the complete extrusion of the child from his mother’s womb and the cutting of the umbilical cord.  At any rate from that moment on, the child becomes a person in the legal sense of the word and, in the ultimate instance, birth will be established through medical evidence.” (Vanderlinden: 10)

 

The other issue that needs to be addressed is whether the legal existence of a person begins as of birth without the requirement of viability, i.e. capability to live outside the womb, which according to Article 4 is presumed if the child lives for 48 (forty-eight) hours after birth.

 

There are two contending interpretations.

      According to the first interpretation, the only condition for acquisition of personality is birth; and the issue of viability arises by way of an exception only when the interest of the conceived child requires the tentative acquisition of personality under the mandatory conditions that

the child be born ‘alive’ and ‘viable’, short of which the personality granted shall be annulled.

 

      The second line of interpretation contends that for a child to acquire personality s/he should in all cases be born alive and viable.  Supporters of this interpretation contend that the sources that Professor Rene David (the drafter of the Civil Code) had used embodied the conditions of life and viability as prerequisites for physical personality.  According to their view, Article 100 “implicitly precludes declarations of birth” if the child hasn’t lived for forty-eight hours.

 

Many lawyers support the first interpretation because they argue that we can’t resort to interpretation if the law is clear.  Article 1 is so clear that the issue of interpretation can in no way arise. And, Article 100 does not implicitly preclude declaration of birth if a child has not lived for 48 hours.  In fact, the provision requires declaration of birth notwithstanding (i.e. - even if) the child dies within 48 hours after birth.  Had personality not been acquired before 48 hours, there would have been no reason for recording a child who died within this period.

 

According to supporters of the first interpretation, the birth of a stillborn child (for example), is not declared because it doesn’t acquire personality.  On the contrary, the duty to declare birth even if the child has not lived for 48 hours verifies the requirement of recording the personality of the child no matter how short it lived.  

 Anticipated personality: Conception and viability 

 

There are instances where the interest of a conceived child is put at stake if personality is attributed only after birth.  A case in point is the inheritance right of a child whose father has died before he is born, as envisaged under Article 834 of the Civil Code. Similarly, the interest of a conceived child should be protected where a parent dies under circumstances that entitle children of a deceased to receive damages, life insurance or other payments. Article 2 is meant to solve such problems.  It reads:

 

A child merely conceived shall be considered born whenever his interest so    demands provided that he is born alive and viable (Article 2).

 

A child is deemed to have been conceived on the 300th day preceding its birth (Article 3).  A conceived child may acquire personality while he is still in his mother’s womb provided that:

a)      his interest so requires, particularly where the interest of a conceived child requires that he be called for succession (Article

834),

b)     he is born alive, and,

c)      he is viable (i.e.- capable of living for at least forty-eight hours after birth (Arts. 4/1 and 4/2).

The three cumulative conditions for granting personality to a conceived child are the interest of the child, life and viability.  Under the examples stated in the preceding two paragraphs, the interest of the conceived child demands that it be considered a person.  However, if a succession devolves upon the child "of which the debts exceed the assets, it can very well be that his personality will not be invoked in that connection" (Vanderlinden: 15).  This is because the child does not have interest in being called for the succession.  

 

Viability clearly includes the condition of being born alive.  Yet, Article 2 distinctly states the requirements of being born alive and viable, most likely because in the case of a stillborn child, the condition of being born alive is not met; and in effect, the issue of viability doesn’t arise.  If on the other hand, the child who had acquired personality during conception is stillborn, or is born alive but not viable, the personality that was conditionally acquired during its conception is of no effect.

 

Viability is presumed where a child lives for 48 (Forty eight) hours after its birth (Article 4/1).  Moreover, a child who dies within 48 hours after its birth “due to a cause other than a deficiency in (bodily) constitution” is presumed to be viable because s/he wouldn’t have died at that moment had it not been for the incidence that caused the child’s death.  


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