Compensation for non-material damage for the loss of the life of an intra-uterine child
RULING Nº 357/2009
8 of July of 2009
The object of an appeal for a concrete review of constitutionality must be one or more legal rules that allegedly violate constitutional precepts or principles. In an appeal on the grounds of unconstitutionality it is not possible to control the concrete judicial decision in question. Even if it directly applies constitutional precepts or principles, the judicial decision cannot in itself be the object of a review of constitutionality as regards either the correctness on the infra-constitutional legal plane of the normative interpretation reached by the court, or the way in which a normative criterion that had already been determined was applied to the specific circumstances of the concrete case (correctness of the subsumptive judgement).
In any appeal to the Constitutional Court, the (un)constitutionality of a rule or rules must necessarily be questioned. So appeals such as the German Verfassungsbeschwerde or the Spanish recurso de amparo, which seek the review sub specie constitutionis of the concrete application of the law by another court, such as to say that the judicial act of “application” is in (direct) breach of one or more constitutional-law parameters, are not admissible.
The present case involved an appeal against a decision in which the Supreme Court of Justice denied a request for compensation for non-material damage that was incurred as a consequence of a road accident and was attributed to the loss of the life of the petitioner’s intra-uterine child and to the latter’s suffering during the period preceding its death.
In the arguments she presented in her appeal to the Supreme Court of Justice, the petitioner in the present case said that an interpretation which denies that an offence against the right to intra-uterine life constitutes an unlawful fact which generates liability, because Article 66 of the Civil Code (which states that personality is acquired at the moment of complete, live birth, and that the rights that the law attributes to the as yet unborn but already conceived human entity are dependent on its birth) does not permit it, is materially unconstitutional, because it is in breach of the article of the Constitution that enshrines the inviolability of the right to life. However, in her appeal to the Constitutional Court, the petitioner only argued a “breach of Article 24 of the Constitution of the Portuguese Republic, which protects the inviolability of human life, including intra-uterine life, the unlawful violation of which is subject to civil compensation”. When invited by the Ruling’s first rapporteur to clearly state the normative interpretation she said was contained in the decision against which she was appealing and the constitutionality of which she wanted the Court to consider, the petitioner continued to say that there was a direct breach of Article 24 of the Constitution. What the petitioner did was to directly subsume the factual situation in question to Article 24, in the sense that the latter ought to be directly applied to the concrete facts of the case and not as a means of determining the content of the constitutional parameter with which the infra-constitutional-law rule should have been compared in order to gauge its legal validity.
Even though this was a mistake on the part of the petitioner, who erroneously subsumed her arguments to Article 24 of the Constitution, when what she should have done was to question the constitutionality of the Supreme Court of Justice’s interpretation of Article 66 of the Civil Code, the Constitutional Court is not permitted to control such an erroneous subsumption in her arguments concerning the concrete facts and the predetermined law, and was thus unable to hear the object of this appeal on the grounds of unconstitutionality.
This was the position taken by the majority of the Justices, but not by the original rapporteur who, because he dissented, was unable to continue to perform that role and was substituted. His dissenting opinion was that the Court should have ruled on the merit of the appeal, on the grounds that in her arguments to the Supreme Court of Justice, the petitioner had raised the question of the unconstitutionality of the interpretation of Article 66 of the Civil Code such that “the as yet unborn but already conceived human entity does not possess a right to life, any offence against which should be the object of compensation”. The dissenting Justice was of the view that the rule whose constitutionality the petitioner wanted to be verified was indicated in the petition to appeal to the Constitutional Court by remission to the question that had been raised before the Supreme Court of Justice. He said that the interpretation of Article 66 of the Civil Code that was adopted in the STJ Ruling against which the present appeal was lodged – that the status of a subject of rights should be denied to a conceived but as yet unborn human entity – was that accepted by the majority of the legal theorists and jurisprudence, but that there were also other, different opinions, according to which, despite the provisions of Article 66, the legal system does end up acknowledging the legal personality of a human entity that has been conceived, but has not yet been born. He went on to say that, as the Constitutional Court had already stated, despite the fact that gestating life is a legal asset that is protected by the Constitution and shares the objective protection which the latter grants to human life in general, it is not possible to say that Article 24 grants a fundamental right to life on the part of the conceived but as yet unborn human entity, of which that entity is itself the subject. Although the as yet unborn human entity has already been conceived, until it is born it is not included in the universe of citizens who belong to the political/legal community whose possession of the subjective rights enshrined by the Constitution is recognised by law. Such an entity is therefore not recognised as a subject of the rights that accrue to all citizens on the basis of Article 12(1) of the Constitution.
However, the fact that intra-uterine life is considered to be one of the stages of human life – which is in turn covered by the requirement of inviolability – constitutes a call on the infra-constitutional order to adopt measures that protect it. What is at stake is the most important dimension of intra-uterine life – that of its very existence – so it is important to determine whether the Civil Law’s failure to recognise a subjective right to life on the part of a conceived but as yet unborn human entity implies a lack of protection that undermines the guarantee of a minimum level of protection for that constitutional-law asset. The dissenting Justice felt that the protection of intra-uterine life is not dependent on recognition of a right to life on the part of the conceived, but as yet unborn, human entity. The best way to protect a given entity does not necessarily entail recognising that it possesses legal subjectivity, but rather raising it to the category of a legal asset. The Civil Law provides for a number of different measures designed to protect legal assets, of which intra-uterine life is one. These include the institution of civil liability, via which the Civil Law requires anyone who commits an offence against assets that are protected by the legal order to reconstitute the situation which would have existed if the event that requires reparation had not happened, or to provide monetary compensation when such reconstitution is not possible.