4 Legal Personality of the Unborn

The unborn poses the paradox: personality begins at birth (registration of birth, not conception, is the general rule), yet law repeatedly protects the child en ventre sa mère. The maxim is nasciturus pro iam nato habetur — "the unborn is deemed already born" — whenever it is tohis advantage. The deeming is conditional and contingent: the unborn acquires rights only if born alive.Illustrations across systems:• Succession: an unborn child at the time of a partition or inheritance is treated as if born (so that a posthumous child's share is reserved) — a principle long reflected in Nepali succession custom and now in the Civil Code 2074's scheme of inheritance, which protects the share of a child conceived but not yet born at the opening of succession, with the share contingent on live birth.• Gifts and trusts: a gift may be made to an unborn person, provided a prior interest (e.g., the parent's life tenancy) bridges the gap until birth.• Torts/criminal law: the unborn has no separate legal personality for purposes of suing (the mother sues for injuries affecting the pregnancy), and criminal law protects the foetus indirectly through foeticide/offence provisions on causing miscarriage — protection without personality.• The boundary case: an unborn has no duties and cannot be a defendant — one-way personality.Analytically, the unborn is best described as a…