Legal Status of the Unborn, Extinction of the Individual, and Capacity in Spanish Civil Law
ITEM 21-3. Legal Status of the Unborn
Article 29: Birth and Personality
Article 29: The birth determines personality, but the conceived is born for all purposes that are favorable.
Is the unborn child a legal entity? This question has sparked much controversy. While a fetus is always protected and holds constitutionally protected rights, its legal personhood remains ambiguous. Some argue for legal personhood, citing the existence of life from conception. Others, like Tomás y Valiente, differentiate between a person and an unborn child. This perspective is reflected in the Abortion Act of March 3rd.
Rights of the Unborn Child
Article 29 allows an unborn child certain rights, such as inheritance rights. However, Article 959 and following of the Civil Code (CC) outline precautions for inheritance when a widow is pregnant, including freezing the partition until birth. In cases of frozen semen, there’s a one-year term for usage.
Does the unborn child have legal standing? Yes, in its favor, with representation from its parents.
Donations
Article 627: Donations made to conceived and unborn children may be accepted by the people who legitimately represent them, if the birth has already been verified.
While donations can be made before birth, it’s not recommended. If the child is not born, the donation must be returned. The obligation remains between the donor and donee (not to alienate, etc.).
Rights of the Not Yet Conceived
It seems contradictory for the not yet conceived to have rights. However, trusts allow for the preservation of inheritance for future descendants.
Article 781: Limits the call to two not yet conceived individuals (thus avoiding depreciation of property).
ITEM 21-4. Extinction of the Individual, Proof of Death, and Preterit Personality
Article 32: Extinction of Civil Personality
Article 32: The civil personality is extinguished by the death of people.
Death occurs when the body irreversibly ceases to function, confirmed by brain death assessments at various intervals. Certifying the time of death is crucial for inheritance, especially when determining who died first.
Effects of Death
Death extinguishes all inherent rights except for personal ones like the right to honor and image. Property and obligations are transferred. What if a father and son, both called to inherit, die simultaneously?
Article 33: If in doubt between two or more persons called to succeed, as to which of them died first, whoever alleges the prior death of one or the other shall prove it; in the absence of proof, it is presumed that they died at the same time and there shall be no transfer of rights from one to the other.
Proof of Death
Death is registered in the Civil Registry, requiring knowledge of the death and medical certification. If a body is missing, a judge can order registration. Death registration is essential for burial or cremation permits. It confirms the death and its date, time, and place.
Preterit Personality
The deceased retains the right to honor and reputation, defended by their heirs or designated individuals.
ITEM 21-5. Marital Status of People
Marital status is a legal situation determined by personal and family relationships. It defines legal capacity and assigns rights and duties.
A) Status Recognized by Law
- Marriage (married, single)
- Affiliation (child or parent)
- Nationality (Spanish or foreign)
- Civil Neighborhood (Madrid, Canary Islands)
- Dependence (major, minor, emancipated, etc.)
- Capacity
B) Character of Civil Status
Civil status is subject to legal regulation, a matter of public interest, and effective against all (erga omnes).
ITEM 21-6. Legal Capacity and Capacity to Act
Legal Capacity
Legal capacity is the ability to have rights and obligations, acquired at birth (Article 30 CC). It’s a personal right that ends with death.
Capacity to Act
Capacity to act is the ability to engage in legal relations and manage rights and obligations. A newborn can own property (legal capacity) but cannot sell it (capacity to act).
Capacity to act requires intelligence, will, and understanding. It varies: absent in newborns, full in adults, and limited in emancipated minors. Legal age for full capacity is 18 (Article 332 CC), with exceptions for disabilities and specific legal requirements (e.g., 25 years old to adopt).
Disabilities
Individuals with disabilities require representatives to manage their affairs. Disability levels vary, leading to total or partial incapacitation. A prodigal individual, for example, might be limited to conducting gratuitous transactions or donations. In such cases, a curator acts as an additional representative, providing oversight. For total disability, the representative is an alternative, managing all affairs. However, they cannot perform personal acts like marriage.
What if an incapacitated individual acts independently? The act can be null (if lacking capacity) or voidable (if possessing minimal capacity, like a 16-year-old), depending on the level of discernment and incapacitation.