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10 Med. L. Int'l 1 (2009-2010)

handle is hein.journals/medclint10 and id is 1 raw text is: Medical Law International, 2009, Vol. 10, pp. 1-22 © 2009 A B Academic Publishers-Printed in Great Britain LEGAL HYBRIDS: ON THE LEGAL STATUS OF EMBRYOS AND FOETUSES JANNE ROTHMAR HERRMANN* University of Copenhagen ABSTRACT The article discusses the inadequacy of traditional theory on legal personhood in relation to embryos and foetuses. To challenge the somewhat binary view of legal personhood according to which the 'born alive' criterion is paramount the article demonstrates that the number of legal categories in which embryos and foetuses are placed are much more complex. These categories are identified using Danish legislation as an example and on that basis the article extracts and identifies the different parameters that play a part in the legal categorisation of the human conceptus. 1. INTRODUCTION The term hybrid usually refers to the cross-breeding of animals or plants. However, in the social sciences the term hybrid is used as a concept describing 'boundary objects', i.e. entities that merge, transcend, challenge or are difficult to stabilise within established social categories.' In terms of law the human embryo and foetus can be described as legal hybrids in the sense that they appear to transcend the established legal categories. The law has traditionally dealt with the beginning of personhood in an anticipated way and the legal questions that arose were the classic issues of the foetus' property rights pertaining to inheritance or tort compensation or the possible collision of rights between the foetus and the pregnant woman in relation to abortion. As I will elaborate on below the law has dealt with the potentiality of the foetus to become a legal person by constructing a special suspended version of property and pecuniary rights whereas the foetus' legal status in most other areas of law continues to generate controversy and uncertainty. Today, developments in biotechnology and biomedical science have removed the embryo from its hiding place in the female womb and brought it into the Petri dish and the bright lights of the laboratory. Consequently, the embryo is no longer merely a potential child, but

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