The inadequacy of man finds expression in life.
Life, however, must be lived and living life implies regulations to stabilise it. And an area where one can make recourse for this is the legal regulations of life. Thus, it is the law that sets and enforces the standards of life for every person in a society. Since the absolute of the guiding principles of life has not been resolved by law, it is obvious that legal definition which is the basis for reform will always present the problem for reforms.
To that effect, this article looks at what has been the position of the law in respect of what constitutes a person and to argue in favour of the view that an unborn child ought to be deemed a person and its homicide should be an offence, regardless of the fact that it has not been brought forth alive from the body of the mother.
The law on who a person is
Article 297(e) of the 1992 Constitution states that persons (both male and female) include corporations. In interpreting who is a person, the Supreme Court of Ghana in the case of New Patriotic Party v Attorney General (CIBA case) held that a person is both natural and artificial, i.e., a natural person is the individual human being while an artificial person is the body corporate (whether a corporate aggregate or a corporate sole) – according to section 32 of the Interpretation Act (1960). In addition, the court stated that a person has a legal requirement to obtain a citizen’s status, which in the case of an artificial person, would call for the registration of the company under the Companies Act 1963 (Act 179) of Ghana.
Be that as it may, one would wonder: what could be the reason why the law does not view an unborn child as a person? Certainly, the law seems to suggest that the legal requirements of possessing life independent of a mother and attaining a citizen’s status disqualify an unborn child to be a person. Unfortunately, this position, in my view, is objectionable; in the sense that, while a child is yet unborn, it possesses life and it has intrinsic right to live and to be protected from unlawful harm.
Homicide of an unborn child
In light of the above, although persons are generally the subject and object of the offence of homicide (murder or manslaughter), it must be noted that a foetus or an unborn child is not classified as a person according to law. Per section 66(1) of Act 29, it states: “In order that a child may be such a person that it may be murder or manslaughter to cause its death, it is necessary that, before its death, the child should have been completely brought forth alive from the body of the mother.”
As earlier indicated, the provision suggests that matters of murder or manslaughter affects only persons and that a child yet unborn is not a person; therefore, as held in AG’s Ref No.3 of 1994, cases of murder or manslaughter to the victim of an unborn child or a foetus is not criminalized. This is further substantiated under section 66(2) of Act 29 that “…it is murder or manslaughter (…) to cause death to happen to a child after it becomes a person, within the meaning of this section, by means of harm caused to it before it became such a person.” Perhaps, the question that comes to mind is: why is abortion criminalized, since it literally has almost the elements as murder or manslaughter of an unborn child?
Definitely, the answer lies in the law promulgated through Parliament which defines an act to be an offence. Abortion according to Act 29 is defined as “the premature expulsion or removal of conception from the uterus or womb before the period of gestation is completed”. Abortion clearly has literally the same elements as murder or manslaughter of an unborn child. Under section 58(1) and (3) of Act 29, causing abortion or abetting it are second degree felonies, punishable by up to 5 years, meanwhile, under section 66(1) and (2) of Act 29, murder or manslaughter of a unborn child is not an offence because the law does not define the unborn child (subject or object of the act) as a person.
The right to life is a natural law principle based on the concept that a human being has the right to live and, in particular, should not be killed by another human being. It must be well-known that human life begins from conception, not when it is brought forth alive from the body of the mother - as averred from the watertight positivist outlook.
Therefore, if the law discounts any act of homicide (murder or manslaughter) against an unborn child because it is not a person, but, it defines under the Criminal Offences Act (1960) Act 29, abortion as an offence in a bid to protect the life of an unborn child from an unlawful harm, there ought to be the need for amendment to clarify the position of the law for better understanding by all.