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Violation of Nasciturus rights in the Colombian legal system
DESCRIPTION OF THE PROBLEM: The future of nascituros, considered as beings conceived and not born, alive and belonging to the human race is uncertain, because they constantly violate the rights, among others, such as civil rights, which are not recognized, since according to the Civil Code the legal existence of every person begins at birth, that is, when completely separating from the mother and breathing at least once and the right to life enshrined in our National Constitution in article 11 that enshrines the lawTo life is inviolable. And that it is the most sacred from the Colombian legal system.
How to ensure that legal considerations and categorizations? If we respond to the above, the interest of the rights of Nasciturus to teachers and law students of the American University Corporation can be aroused and from the Academy begin to seek and achieve reforms in the legal system so that the Nasciturus are declared people andCivil rights subjects from conception.
Among the objectives with this project, it is intended to determine taking into account scientific studies, since the moment human life begins, analyzing based on legal regulations and exposing because the nascituro do not have the same rights, nor are they cataloged as persons and subjects ofcivil rights and finally evaluate the above and propose a possible solution to the problem raised
What motivated this investigation are the civil rights of the unprotected nasciturus, which should be recognized, and thus be persons subject to law. Biology provides direct and objective knowledge about the beginning of the life of each conceived of our species. From the Zigoto phase we are in the presence of a human body in the temporal processes of the transmission of life.
He affirms that the same human individual is what exists in embryonic life, in youth or in old age. Although the body changes continuously, from the beginning to death through embryonic, fetal stages and after birth, however it maintains its body identity.
It also brings an indirect knowledge of the origin of each human being by showing that in the only life of each one the dynamism of biological processes and the personal dynamism that frees him from the confinement of physiological automatism is intertwined in a single subject. Based on the above we can say that the biological existence of the human being begins from conception and we are constantly changing people, unique and unrepeatable.
For the SAR, the meaning of Nasciturus is: conceived, but not born, as a phase of internal human life or in formation. (Royal Spanish Academy, S.F.) The word nasciturus is Latin and derived from Nascor (which is to be born), for the Colombian legal system represents a concept different from the one already born and refers to the human being as a subject of law that has been conceived, but it has not yet been born, it has not yet been born,Therefore the right that is respected is the right to life as stated in Judgment C-133 of the Constitutional Court, where it says that the State has the obligation to establish, for the defense of life that begins with theConcepción, an effective legal protection system, and given the fundamental character of the right to life, its instrumentation must necessarily include the adoption of criminal norms, which are freed to the discretionary criteria of the legislator, within the limits of the constitutional system.
The constitutional recognition of the primacy and inviolability of life excludes, in principle, any permissive possibility of acts that are voluntary and directly ordered to cause the death of beings not yet born, and authorizes the legislator to penalize acts destined to provoke his death. The life of Nasciturus embodies a fundamental value, for the hope of its existence as a person who represents, and for its state of manifest defenselessness that requires the special protection of the State.
In the Political Charter, the protection of the life of the unborn, finds a livelihood in the preamble, and in articles 2 and 5, since it is the duty of the public authorities, to ensure the right to life of all people, and obviouslyAmparo includes the protection of life during its training and development process, as it is a condition for the viability of birth, which gives rise to the legal existence of people. What is insufficient but very important because the category is not given to the nasciturus that should be given to them, and that is of people, in article 74 of the Colombian Civil Code says that all individuals of the human species are people, anyoneLet it be your age, sex, lineage or condition.
And then in article 90 we define the principle of the existence of the person as follow, the recognition of Nasciturus as a person either have other legal systems such as Chile, Argentina among others, in Mexico the Federal Civil Code such as the Civil Code for the Federal District indicated in its article 22 that from the moment an individual is conceivedunder the protection of the law and is considered born for the purpose of donating or inheriting. However, at any time it is established how Nasciturus will be protected legally.
Consequently, it is necessary to create a mechanism that protects Nasciturus during their gestation until birth. Argentina from its maximum order has issued a special and comprehensive security regime for pregnant women and Nasciturus during pregnancy and breastfeeding. Its Civil Code points to Nasciturus as a person of visible existence with absolute disability in a similar sense to minors, the insane and the deaf and dumb. Absolute inability implies that rights can be executed and obligations over their legal representatives.
Returning to our legal system in Law 1098 in its article 17, where the right to life from conception is established, as in several sentences of the Constitutional Court such as the T-179/93, C-133/94,T-041/96, T-223/98 and the SU-096/18 in which the Constitutional Court has protected the right to life to the Nasciturus, but it replaces the right to the Nasciturus of being peopleCivil rights subjects and in this way give them more protection because surely mothers in pregnancy will reuse abortion and their life will be more unprotected by the legal system, in order to achieve recognition here raised to the nasciturus, a constituent is necessarywhere the primary constituent orders Congress to legislate in this regard.
The methodology carried out in this project was exploratory and bibliographic, exploratory because from this you can know the true implications of a specific problem, also to know what are the most interesting and relevant aspects when addressing an investigation, in addition all research or better everything Research process starts from the exploratory action because the researcher knows the subject thorough concerns about the rights of the Nasciturus and I came to a conclusion, hard to accept, but this is the right, as in life we move between love and heartbreak, the results thrown by this project showed that more must be opened the debate, on the issue of the right to be a civil rights person to s nasciturus, the legislator and the Constitutional Court must be aware that legal law and norms are changing and must be adapted according to the time of history that I know how to live on the other hand was bibliographic because it was explored although not very close in the community in the community scientific, and in the legal system on the subject addressed, it should be noted that due to the circumstances we are currently living.
This project is proposedTo the human race like all of us, human beings, for this, will be addressed from bioethics and will be known since when you are a person and because the nasciturus are not classified as persons and therefore are not subjects of civil rights in the Colombian legal system
- Colombian Civil Code. (07 of 2016). Code. Bogotá, Colombia: Leyer.
- Political Constitution of Colombia. (August 2016). Bogotá: Leyer Editores.
- Constitutional, c. (17 of 03 of 1994). Constitutional court.
- Martínez, b. R. (02 of 12 of 2016). Institutional repository of the Autonomous University of Mexico.
- Moratalla, n. L. (December 28, 2011). Bioeticsweb.com.
- ROYAL SPANISH ACADEMY. (s.F.).