[Chapter 10. The embryo, a particular thing]

By allowing a woman to terminate the life of the embryo, the law of 17 January 1975 leads us to ask the question about how to qualify the embryo. Is it a thing or a person ? Subordinate to the birth of a viable, living being, the embryo can have no acknowledged legal personality. Its particularity must nevertheless be noted : it is the only thing in law that is likely to become a person. So, conjugated in the present (The reality of the present : the embryo is a thing), the embryo is without doubt a thing.This qualification is implicit and results from an a contrario interpretation of article 16 CC. By not qualifying the human being from the start of his life as a person, the legislator treats him as a thing. That explains why the term homicide cannot be used against someone whose fault has provoked the termination of the pregnancy of a pregnant woman.The qualification as a thing does not prevent the protection of the embryo, attached to its quality as a human being. This protection is different from that applied to a person. In fact, it does not present an obstacle to the destruction of the embryo. It only consists in providing a framework for any violations that the embryo might suffer. The protection is variable according to whether it applies to the embryo in vitro or in utero and increases as the parental project progresses.Conjugated in the future, the embryo will become a person (The fiction taken from the future : the embryo is a person). This perspective allows us to qualify it fictitiously as a person, from conception, by means of an analysis, either retrospective or prospective.The retrospective analysis allows, once the child is born alive, a ?return to the future? by recognising that the embryo has rights, from conception, by applying the adage infans conceptus.The prospective analysis leads to anticipating the future and the quality as a person that will be acknowledged for the embryo at birth. Inspired by the law of goods and in particular the notion of thing by anticipation, the embryo can thus be qualified as ?person by? : this is a ?thing by nature? fictitiously qualified as a person because of the perspective of his birth. The interest of this qualification is that it explains the exceptional application of the legal regime of persons to the embryo, which limits the powers of the woman over her embryo. Indeed, the woman without doubt has absolute power to dispose of her body materially during the first weeks of the pregnancy, which confers on her the ability to destroy the embryo which is an element of her body. However, if she should wish to give birth to the child, the woman is deprived of the power to conclude legal acts of disposition by which she would commit herself to transfer the child to someone else at birth.