Legal Personhood in the New Argentine Civil and Commercial Code

By Martín Hevia

The Argentine Congress has just passed a new and unified Civil and Commercial Code. The new Code will be effective as of January 2016. The Code covers topics from torts and contracts to family law and in vitro fertilization. It is a massive volume of almost 2700 articles – it is, however, shorter than the current Code, which includes almost 4000 articles -.

One of the main issues in the new Code is the definition of legal personhood. Article 19 of the new Code states that “Human personhood starts with conception”. This wording has been strongly critized because “conception” has been frequently defined as “fertilization.” Critics argue that Art. 19 may imply an obstacle for assisted reproductive technologies: in vitro embryos may be considered “legal persons”, comparable to a live human person. Thus, they may be taken to have the same right to life. In fact, this argument has been accepted by some courts. For example, in 2002, the Supreme Court of Argentina prohibited the production, distribution, and commercialization of Imediat, an emergency contraceptive because of its perceived abortive effects it is considered to violate the right to life, which is regarded as an absolute right that preempts any other right.  For the Court, life begins with the union of the gametes, namely, with fertilization and before implantation. A similar line of reasoning was followed by the Ecuadorian Constitutional Court in 2004.

In contrast, defenders of the wording of Article 19 argue that it should be read together with Article 20, which states that “time of conception is that between the maximum and the minimum length of pregnancy”. This may mean that there cannot be conception outside a woman´s body. Thus, conception is to be understood as “implantation.” 

In addition, defenders of Article 19 have claimed that Argentine Courts ought to interpret the Civil Code through the lens of human rights treaties incorporated to the Argentine Constitution. In particular, they are to apply the Inter-American Court of Human Rights precedent “Artavia Murillo y otros c. Costa Rica”, where the Court interpreted Article 4.1 of the American Convention on Human Rights (“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”). For the Court, although fertilization implies the existence of a different cell, without implantation the embryo cannot develop. Thus, “conception” in article 4.1 means “from the moment of implantation.” The Court also argued that in vitro embryos do not have legal personhood and that the right to life is not absolute – it is to be balanced with other rights recognized in the Convention such as the right to privacy.

This defense of Article 19, however, may be too optimistic because Argentine courts may not follow the Inter-American Court caselaw (although the Argentine Supreme Court has stated that Argentine courts ought to follow it, there is no formal stare decisis in Argentina.).

An alternative proposal would start from the idea that civil law cannot and should not determine the beginning of life. “Conception” and “Personhood” are normative concepts. The relevant issue for us to decide is when to recognize legal personhood to human beings for the purposes of ascribing private law juridical rights and duties. A further alternative, not considered by the Argentine Congress, could have been to state that legal personhood starts from birth. This is, in fact, the law in many countries.

Finally, it is important to mention that the wording of the Civil and Commercial Code cannot be the basis for an argument against decriminalizing abortion – in any case, a matter that belongs to the Criminal Code. The Civil and Commercial Code is an ordinary law, which ought to be consistent with the Constitution.

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