Introduction
In the intricate landscape of legal matters, understanding the rights of the nasciturus becomes crucial. How do civil law presumptions apply in succession and donation scenarios for the unborn child? What do recent judicial rulings say about the life and rights of the nasciturus? These questions lead us into the fascinating realm of the nasciturus, a legal concept that, while seemingly familiar, holds nuanced and surprising applications in legal practice.
This article delves into what the nasciturus is, its rights, where they are regulated, and what recent jurisprudence says about this legal entity. We will also explore practical examples to enhance your understanding of the unborn conceived child. Join us on this legal journey as we unravel the complexity, practical applications, and the key influence of the nasciturus in contemporary civil law.
What is Nasciturus? 2 Practical Examples
The nasciturus is a presumption in civil law that considers the conceived child as born for all purposes that favor them, as regulated in Article 29 of the Civil Code.
But why is this a presumption?
It revolves around the moment when legal personality is acquired. In law, to be the subject of rights and obligations, and in general, to engage in legal relationships, one must have legal personality. This should not be confused with legal capacity, which is the ability to effectively exercise those rights and obligations on one’s own.
Legal personality, according to the Civil Code, is acquired from birth with life, once the complete detachment from the maternal womb occurs, as stated in Article 30 CC. Without the presumption of the conceived child, they would not exist in the eyes of the law until the actual birth. For example, in an inheritance scenario where the deceased left his spouse pregnant, the distribution of the inheritance would proceed without considering that unborn child.
Thus, the presumption of the conceived child considers them as born for all purposes favoring them, conditioning the effects of this acquisition until the actual birth.
Regulation of Nasciturus in the Civil Code
Several articles in the Civil Code mention this concept, including:
- Article 627: This article establishes that the nasciturus may receive donations, which must be accepted by those who would legally represent them if they were born, usually their parents.
- Articles 959 to 966: These articles pertain to the obligation of a pregnant widow to inform heirs of her condition and the moment of childbirth. This implicitly recognizes the right of the conceived child to be part of the inheritance. It also outlines the rights of other heirs to request measures preventing the assumption of childbirth in the same situation as before. Additionally, it establishes the right of the widow to be supported with the hereditary assets during pregnancy, considering the unborn child. Regarding the inheritance, the last two articles state that estate assets will be managed and secured until childbirth or until it is determined that it will never occur. The division of the inheritance will be suspended until the mentioned childbirth, although the administrator may pay the creditors of the estate.
Nasciturus in Jurisprudence
This presumption of the conceived child has undoubtedly given rise to many judgments in our legal system. Let’s analyze Judgment 44/2023, which enumerates various judgments over time and stands as one of the most recent on the subject:
- Right to Life: The judgment establishes that the nasciturus is not a person per se but rather a legally protected interest. As per jurisprudence (SSTC 53/1985, April 11, paragraphs 5 and 7), since it is not a person, it cannot be the holder of rights or fundamental rights.
- Right to Equality: The judgment also mentions the right to equality of the conceived child. In the analysis of the unconstitutionality of the law, reference is made to the right to non-discrimination of unborn children with disabilities recognized by the United Nations Convention on the Rights of Persons with Disabilities of 2006. The Constitutional Court (TC) states that the Convention leaves the rights of the conceived child in the hands of each state, and the legislator has chosen not to attribute these rights to the conceived child, thus denying the right to non-discrimination.
- Identity of Nasciturus: The judgment establishes a crucial distinction, emphasizing that there is no confusion regarding the identity of the nasciturus, as it has its own identity separate from the mother, even though it is within her. It cannot be confused with an organ or bodily member of the mother.
- Intrinsic Value of Unborn Life: In other Constitutional Court judgments (specifically, judgments 212/1996 and 116/1999), it is recognized that the life of the unborn conceived child has intrinsic value, as it represents human life in the gestation phase.
Practical Examples
1. Nasciturus in Inheritance: In a complex succession dispute, Julian passes away, leaving his pregnant wife Rosa and two heirs, Alonso and José, from a previous marriage. Without the presumption of the nasciturus, the inheritance would be distributed among the existing heirs, ignoring the unborn child. As per the provisions of Article 959 of the Civil Code, the widow must request the suspension of the division until childbirth. Simultaneously, Alonso and José can request measures to ensure that there is no assumption of childbirth, involving steps during childbirth and possibly a DNA test in contemporary times.
The widow, supported by the jurisprudence recognizing the right of the nasciturus to be part of the inheritance, seeks measures to prevent discrimination and ensure the equitable participation of the unborn child. The complexity lies in balancing the rights of existing heirs with the presumption favorable to the nasciturus, demonstrating the practical and vital application of the legal concept of nasciturus in a disputed succession context.
2. Nasciturus in Donation: Alvaro decides to make a donation of money to his unborn nephew, establishing specific conditions related to the presumption of the nasciturus. According to Article 627 of the Civil Code, the donation must be accepted by the legitimate representatives of the nasciturus, in this case, the parents. However, a controversy arises when the separated parents disagree on the acceptance and administration of the donation.
In this case, if the parents do not reach an agreement, a judicial representative may be appointed for the nasciturus. Additionally, if the pregnant woman is incapacitated and under extended guardianship in adulthood, the nasciturus will be represented by whoever represents the mother, which could be the father or the mother’s guardian.
Conclusions
This article has analyzed the legal concept of the nasciturus, exploring its rights and applications in the legal domain. You have learned that the nasciturus is presumed born for legal purposes favorable to them, playing a crucial role in inheritance and donations scenarios where, otherwise, unjust results might occur. The detailed regulation in the Civil Code and clarifications from jurisprudence, such as Judgment 44/2023, reveal the complexity of this presumption. It recognizes the nasciturus as a legally protected interest with specific rights, without attributing legal personality per se, as it is acquired at birth according to the Civil Code.