European Journal of Health Law 11: 381-389, 2004.

Published by Martinus Nijhoff 381

Publishers. © 2004 Koninklijke Brill N.V. ISSN 0929-0273. Printed in the Netherlands.

NEWS AND VIEWS

Does a Fetus have a Right to Life? The Case of Vo v. France

TREES A.M. TE BRAAKE*

1. Introduction

On 8 July 2004 the European Court of Human Rights dismissed a complaint

against France.1 The complaint had been brought before the Court by Mrs. Vo
who alleged, in particular, a violation of Article 2 of the European Convention
for the protection of Human Rights – concerning everyone’s right to life2 – on
the grounds that the conduct of a doctor who was responsible for the death of
her child in utero was not classified as unintentional homicide in French law .
Mrs. Vo, when visiting a hospital to see her doctor for a medical examination
scheduled during the sixth month of pregnancy, by mischance was mistaken for
a namesake who attended the hospital on the same day to have a coil removed.
The doctor noticed that Mrs. Vo had difficulty in understanding French, consulted
the medical file and, without examining her beforehand, sought to remove the
coil. In doing so, he pierced the amniotic sac which caused the loss of a substantial
amount of amniotic fluid. When, a week later, this fluid had not been replaced
it became clear that the pregnancy could not continue further, and therefore it was
terminated on health grounds.
Mrs. Vo and her partner lodged a criminal complaint and applied to be joined
as civil parties to the proceedings in which they alleged unintentional injury to
Mrs. Vo (entailing total unfitness for work for a certain period) and unintentional
homicide of her child. The doctor was committed to stand trial on counts of
unintentionally causing injuries, the prosecution of which turned out to be statute-
barred, and unintentional homicide. However, the French Court of Cassation ruled
that the events which led to the death of the fetus could not be qualified as
homicide.
Thereupon Mrs. Vo lodged her complaint before the European Court. The
Court, however, held by fourteen votes to three that no violation of Article 2 had
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been constituted. The Court did not answer the question as to whether the unborn
child is a person for the purposes of Article 2, but assuming it was, there had been
no violation of the requirements of Article 2. French law, so the Court held, did
offer the mother sufficient legal remedies.
The Court’s judgement, which in newspapers was reported as holding that the
fetus was not yet a person, is given added spice by being delivered only shortly
after the U.S. president signed the Unborn Victims of Violence Act (UVVA) that,
on a federal level, defines the circumstances in which a fetus can be a victim of
homicide, a question that in the various American States is answered differently.
In the media, the UVVA was announced as recognising the fetus as a person.
In this article, after a closer look at relevant French law (section 2) and the
European Court’s (majority) judgement (section 3), this judgement will be dis-
cussed as to the central question of whether Article 2 does or should apply in this
case and the way such applicability could or could not be construed (section 5).
The Court’s judgement was a majority decision of fourteen votes to three. Dis-
senting opinions came from judge Ress and from judge Mularoni (joined by one
other judge). Furthermore, seven judges out of fourteen did not (fully) agree to
the majority reasoning. Separate opinions were given by the judges Rozakis (joined
by four other judges) and Costa (joined by one other judge). The central questions
are whether Article 2 applies, possibly because it is a ‘living instrument’, and
whether it can be construed through the ‘assuming that’ reasoning and/or through
the woman’s right to life. As the minority opinions cover almost all possible
answers to those questions, these will be taken as a starting point (section 4).3

2. A closer look at French law

As relevant law and practice in France, the Court mentions4 the following provi-
sions. At the material time the unintentional taking of life was a criminal offence
under Article 319 of the former French Criminal Code (CC) (unintentionally
committing homicide or unintentionally causing death), which since has been
replaced by Article 221-6 CC (causing the death of another), which is an offence
against the person. The voluntary termination of pregnancy by a third party without
the mother’s consent is a criminal offence under Article 223-10 CC, belonging
to the category ‘endangering the person’. For the purpose of protection of the
embryo various types of conduct, including the conception of human embryos
in vitro for research or experimental purposes, are prohibited, and qualified as
serious crimes or other major offences. Article L. 2211-1 of the Public Health
Code (PHC) reads: ‘As stated in Article 16 of the Civil Code as hereafter repro-
duced: “The law secures the primacy of the person, prohibits any assault on human
dignity and guarantees the respect of every human being from the beginning of
 NEWS AND VIEWS 383

its life”’. This principle may only be derogated from in the event of necessity and
in accordance with the conditions set out in that part of the PHC (Article L. 2211-
2). Such conditions are those pertaining to voluntary termination of pregnancy
on the woman’s request, which is allowed within the first twelve weeks of preg-
nancy (Article L. 2212-1) or at any time if the woman is at serious health risk
or the unborn child is suffering from a particularly serious, incurable affliction
(Article L. 2213-1).
In the case of Mrs. Vo, the French Criminal Court held that the offence of
unintentional homicide or unintentionally taking the fetus’s life was not made out,
since the fetus was not a ‘human person’ or ‘another’ within the meaning of the
relevant French CC provisions. Yet the Court of Appeal, referring among other
things to the principles laid down in section 1 of the French 1975 Abortion Act
(‘The law guarantees respect of every human being from the beginning of life
...’) and Article 16 of the French Civil Code, found the doctor guilty of uninten-
tional homicide. The latter judgement, however, was quashed: the Court of Cassa-
tion, having regard to Article 111-4 CC, held that criminal-law provisions must
be strictly construed and that the matters of which the doctor was accused did
not come within the definition of the offences set out in former Article 319 and
Article 221-6 CC.

3. A closer look at the European Court’s (majority) judgement

The European Court noted that Article 2 gives no temporal limitations of the right
to life and in particular does not define ‘everyone’ whose ‘life’ is protected. The
issue of the ‘beginning’ of ‘everyone’s right to life’ has been raised in connection
with abortion laws, but has not been clearly answered yet.5 In the present case,
however, the issue was – so the Court stated – whether harming a fetus should
be treated as a criminal offence in the light of Article 2, with a view to protecting
the foetus under that Article. The Court does not intervene in the debate as to who
is a person and when life begins. In existing case-law consideration has been given
to the diversity of views on these points and the State has been left with consider-
able discretion in the matter. It follows that the issue of when the right to life
begins comes within the margin of appreciation which the Court generally considers
that States should enjoy in this sphere, notwithstanding an evolutive interpretation
of the Convention, a ‘living instrument’ which must be interpreted in the light
of present-day conditions. The Court’s reasons for that conclusion are that the
issue has not been resolved within the majority of the Contracting States, including
France,6 and that there is no European consensus on the scientific and legal defini-
tion of the beginning of life.7 ‘At best it may be regarded as common ground
between States that the embryo/fetus belongs to the human race. The potentiality
384 NEWS AND VIEWS

of that being and its capacity to become a person ... require protection in the name
of human dignity, without making it a “person” with the “right to life” for the
purposes of Article 2.’ The Court is convinced that it is neither desirable, nor even
possible as matters stand, to answer in the abstract the question whether the unborn
child is a person for the purposes of Article 2.
As to the present case, however, the Court considers it unnecessary to examine
whether the abrupt end to the applicant’s pregnancy falls within the scope of
Article 2, seeing that, even assuming that this provision was applicable, there was
no failure on the part of the respondent state to comply with the requirements
inherent in Article 2 relating to the preservation of life in the public health sphere.
The Court observes that the unborn child’s lack of a clear legal status does not
necessarily deprive it of all protection under French law. However, in the circum-
stances of the present case, the life of the fetus was intimately connected with
that of the mother and could be protected through her, especially as there was
no conflict between the rights of the mother and the father or of the unborn child
and the parents, the loss of the fetus having been caused by the unintentional
negligence of a third party. If the infringement of the right to life or to physical
integrity is not caused intentionally, Article 2 does not necessarily require the
provision of a criminal-law remedy in every case. In the specific sphere of medical
negligence disciplinary measures may also be envisaged. In the present case Mrs.
Vo could have brought an action in negligence for damages in the administrative
courts before the action had become statute-barred.

4. Minority opinions

4.1 The direct applicability of Article 2

Ress in his dissenting opinion takes the position that the answer to the question
of whether the unborn child is a person for the purposes of Article 2 should be
‘yes’, mainly because of the ordinary meaning of the wording, which is – his-
torically, among lawyers – that ‘everyone’ includes the human being before birth
and ‘life’ covers all human life commencing with conception, that is to say from
the moment an independent existence develops until it ends with death, birth being
but a stage in that development. Besides, Ress argues that the Commission and
the Court in the context of abortion, have developed a concept of implied limita-
tions and of a fair balance between the interests of society and those of the mother
of the unborn child. He holds that this structure proves that both institutions were
inclined to adopt the ordinary meaning of ‘human life’ and ‘everyone’, rather than
the other meaning. For it is clear to him that this would not have been necessary
if they had considered at the outset that Article 2 could not apply. Ress states that
 NEWS AND VIEWS 385

there can be no margin of appreciation as to the applicability of Article 2, though

it may exist to determine the measures that should be taken to protect such life.
Ress further argues that even if it is assumed that the ordinary meaning of human
life in Article 2 is not entirely clear, the way in which it is interpreted must evolve
in view of the techniques available for genetic manipulation and the unlimited
production of embryos for various purposes. Article 2 should, Ress pleads, evolve
in accordance with these developments and constraints and confront the real
dangers now facing human life.
Costa would have preferred the Court to hold that Article 2 was applicable,
even if such a conclusion is not self-evident, because such a decision would have
been clearer with only minimal inconvenience as regards the scope of the judge-
ment. He sees no good legal reason or decisive policy consideration for not
applying Article 2 in the present case. He believes that there is life before birth,
within the meaning of Article 2, that the law must therefore protect such life, and
if a national legislature considers that such protection cannot be absolute, then
it should only derogate from it, particularly as regards the voluntary termination
of pregnancy, within a regulated framework that limits the scope of the derogation.
In the Rozakis opinion (which is the largest minority opinion), it is stated that
the Court has correctly stated that both in France and at a European level the nature
and status of the embryo and/or the fetus are currently not defined, but has failed
to draw the relevant conclusion that the right to life of the unborn child has yet
to be secured. Even if one accepts that human life begins before birth, this does
not automatically and unconditionally confer on this form of human life a right
equivalent to the corresponding right of a child after its birth. This does not mean
that the unborn child does not enjoy any protection by human society, since the
unborn life is already considered to be worthy of protection, but this protection
is distinct from that given to a child after birth and far narrower in scope. ‘It
consequently transpires from the present stage of development of the law and
morals in Europe that the life of the unborn child, although protected in some of
its attributes, cannot be equated to post-natal life, and, therefore, does not enjoy
a right in the sense of “a right to life”, as protected by Article 2 of the Convention.
Hence, there is a problem of applicability of Article 2 in the circumstances of the
case.’

4.2 The ‘assuming that’ formula and applicability through the preg-
nant woman

Rozakis concludes that Article 2 is not applicable in this case. He rejects the
majority basing their finding of no violation of Article 2 on the argument that
the Article’s guarantees had been satisfied, despite their obvious doubts or, at any
386 NEWS AND VIEWS

rate, their reluctance to accept the applicability of Article 2 in this case. Reliance
on those guarantees presupposes the prima facie applicability of that Article. The
‘even assuming’ formula does not alter the position if, in the end, the only real
grounds for the Court’s findings is the hypothesis referred to in the ‘even as-
suming’ formula. By using that formula as to the applicability of Article 2, and
by linking the life of the fetus to the life of the mother, the majority has surreptiti-
ously brought Article 2 to the fore of the case. Besides, in the circumstances of
the case, there was not even the remotest threat to the mother’s right to life, such
as would justify bringing the procedural guarantees of Article 2 into play.
Costa does not believe that it is possible to take the convenient way out of
saying that Mrs. Vo, a ‘person’, had a right to life (of her unborn child). In his
view this type of decision can only apply to the case of Mrs. Vo if it is accepted
that the unborn child itself has a right to life. Ress also holds the opinion that the
problem of protecting the embryo through the Convention cannot be solved through
the protection of the mother’s life.

5. Discussion and conclusion

It appears that very different opinions exist as to the protection Article 2 may offer
an embryo or a fetus. Discussions in this field show a high degree of mutual
incomprehension, very often caused by insufficiently distinguishing between matters
of a biological nature (which are facts) or ethical and philosophical viewpoints
(which to a large extent are convictions which may mean something different to
somebody else) and questions of a juridical nature. Moreover the difference
between legal rules one wishes to come into existence and existing legal rules
is not always maintained. Answers to the latter type of question mainly depend
on what has been agreed, though it is true that such agreements should preferably
not ignore biological facts or move too far from common ethical beliefs. Ethical
beliefs, however, do not coincide with legal rules and no more should legal
opinions be presented in the guise of biological facts.8 Bearing this in mind, Ress’s
statement on the ordinary meaning of the wording can easily be refuted.
Admitting that a living fetus is human life, being a matter of biology, is not
so difficult, but such a fact is far from a decisive argument for concluding that
it is an ‘everyone’ whose life is protected by Article 2. The concept of implied
limitations and striking a fair balance – invoked by Ress as a proof that Court
and Commission were inclined to hold Article 2 applicable in cases on abortion
laws – has up to and including the 2000 Boso v. Italy decision rested on an ‘even
supposing that’ basis and can equally, if not better, be interpreted as an escape
from having to decide that Article 2 did not apply.
 NEWS AND VIEWS 387

Holding Article 2 applicable and leaving it to national legislatures to decide

whether its protection is absolute and on a regulated framework that limits the
scope of the derogation – the way Costa would compromise for the sake of
clarity – would in my opinion neither contribute to legal certainty nor to the
formulation of a European standard, no more than the Court’s case-law on abortion
laws did.9 As the Court stated, ‘at best it may be regarded as common ground
between States that the embryo/foetus belongs to the human race’. So far I am
on the Court’s side.
The Court, however, fails to conclude that consequently – and contrary to what
Ress states about the ordinary meaning of the wordings – it has never been agreed
that Article 2 entails a right to life for a fetus. Ress, rejecting a margin of apprecia-
tion as to the applicability of Article 2, in my opinion is right, albeit that my
conclusion is quite the opposite: without agreement there can be no application
of Article 2. This is the more true because during the past decades and even
recently10 such agreement has time and again shown to be impossible to reach.
It would then be quite remarkable for a court to invoke the Convention’s character
as a living instrument and to refer to present-day conditions in order to construe
such applicability. Such a thing would be even more surprising in a case, like the
present one, that shows no striking relevant new (‘present-day’) factual character-
istics.
However, as a matter of fact the Court has not construed a fetus’s right to life,
but only the possibility that Article 2 may offer such a right, for, in essence, the
Court does not know. Nevertheless the French legal situation is tested against the
requirements of Article 2, the possibility of which has been construed by reasoning
that – in the absence of conflicting interests – the foetus can be protected through
the pregnant woman’s right to life.11 Protection of the fetus in utero through the
woman is certainly not to be rejected in principle, but I would not advocate the
route through her right to life,12 nor should those who underline woman and fetus
as being separate lives. First of all it misses the point, because the woman’s life
will not usually be at stake at all, and it was not in the present case. Secondly,
because this route is not beneficial to reaching coherent answers to present-day
problems in the field of embryo and fetus protection. Both Ress (‘the real dangers
now facing human life’) and Rozakis indicated the scientific developments which
urge to provide for protection of unborn life. This wider problem of the legal
protection of embryo and fetus, that ‘yet has to be secured’ (Rozakis), comprises
far more than just situations during pregnancy with no conflicting interests between
woman and fetus. Scientific developments in particular raise questions of protection
of the embryo in vitro. When looking for an answer to such questions the woman’s
right to life as a deus ex machina is too remote.
So I agree with Ress, Costa and Rozakis that this ‘convenient way out’ is to
be rejected. But no more would I accept that, merely because of the need for
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embryo protection, the meaning of Article 2, albeit a living instrument, should

be stretched by court decision as far as to apply beyond the democratic consensus
that could be reached.
The fundamental differences as to the nature and legal status of embryo and
fetus and hence the applicability of Article 2 will not easily be solved. For it seems
that the more fundamental the questions to be answered, the more parties will be
inclined to dig their heels in. Fundamental legal concepts are very useful in legal
doctrine. However, if such concepts are not generally accepted, these may get in
the way of reaching results. Fortunately adequate legal protection is possible
without the embryo and fetus being credited the status of a person. We may start
to accept that Article 2 was not agreed to apply to human life before birth. We
might continue now to try and find out what level of legal protection we may agree
on, in stead of losing time quibbling on theoretical concepts.
The case of Vo v. France was the first occasion for the European Court to
construe Article 2 as to its meaning for unborn life in a context that is not abortion
legislation. Abortion legislation strikes a balance between a pregnant woman’s
right to a private life on the one hand and an adequate legal protection of embryo/
fetus on the other. When it comes to protection of a fetus against a third party’s
violent conduct without any of that party’s fundamental rights being involved,
there would be no contradiction in protecting the fetus through the woman’s right
to physical integrity and it should be no problem to make such conduct, both in
its intentional and unintentional manifestations, a severe criminal offence. However,
if a doctor, in his professional conduct, has negligently inflicted the injury, it may
be wiser – as Ress suggested – to bring disciplinary proceedings against that
doctor, in order not to put too heavy a burden on professional medical activities.

Notes:
* Academic Medical Centre/University of Amsterdam, The Netherlands.
1. Vo v. France, application no. 53924/00; judgement 8 July 2004 (Grand Chamber).
2. ‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law. 2. Deprivation of life shall not be
regarded as inflicted in contravention of this article when it results from the use of force
which is no more than absolutely necessary; (a) in defence of any person from unlawful
violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’
3.The Mularoni opinion shows no disagreement with the majority opinion on the applicability
of Article 2 and will therefore not be discussed here.
4. Judgement, par. 23-28.
5. Relevant Commission decisions are in particular the cases of Brüggemann and Scheuten
v. the Federal Republic of Germany (1977), X. v. United Kingdom (1980), H. v. Norway
(1992) and recently Boso v. Italy (2000).
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6.The European Court observed that in France, for instance, the Court of Cassation’s approach,
that conflicts with that of several Courts of Appeal, was interpreted as an invitation to the
legislature to fill a vacuum, but that the legislature’s recent attempts to create an offence of
involuntary termination of pregnancy (‘Garraud amendment’) have failed. Besides, the 1994
bio-ethics laws are currently being revised in order to take into account subsequent scientific
and medical progress and new issues with which society is confronted.
7.At a European level the Court observes that the Convention on Human Rights and Bio-
medicine is careful not to give a definition of the term ‘everyone’ and allows domestic law
to provide clarifications. It also observes that the Additional Protocol on Cloning Human Beings
as well as the draft Additional Protocol on Biomedical Research do not define the concept
of ‘human being’. So the Court observes that there is no consensus on the nature and status
of the embryo and/or fetus, although they are beginning to receive some protection in the light
of scientific progress and the potential consequences of research into genetic engineering,
medically assisted procreation or embryo experimentation.
8. Costa mentions a German Federal Constitutional Court’s view that ‘life begins after fourteen
days gestation’. Even if this were a biological fact, it could be contested as the beginning
of a right to life.
9. See, Trees A.M. te Braake, Late Abortion and the European Convention for Human Rights,
Med Law 1999, p. 607-612.
10.See, among other things, the difficulties on a European level in defining the relevant concepts
in the Oviedo convention and the Protocol on cloning human beings.
11. Strictly speaking the Court thus holds that Article 2 does not apply to the fetus itself, but
I doubt the Court would admit so.
12.In some circumstances protection of a fetus in utero may take place through (the physical
aspect of) the pregnant woman’s right to privacy (physical integrity). For instance, under the
Dutch Penal Code (PC) the death of a fetus in utero has explicitly (Article 82 PC) been included
in a woman’s severe bodily injury. Intentionally or unintentionally causing such injury is a
criminal offence. However, intentionally causing the death of a viable fetus has been included
in intentionally killing ‘another person’ (Article 82a Dutch PC).