What rights does the unborn conceived have? Ayuso’s law reopens the legal debate

The new law of the Community of Madrid, which recognizes the unborn conceived as an additional member of the family unit to access certain public aids, has once again brought to the table what the legal recognition of the unborn (nasciturus) in Spain is. The question becomes especially relevant in extreme situations, such as when a woman loses the pregnancy due to a traffic accident or a terrorist attack. In those cases, the legal treatment of that loss is not always the same and varies depending on the area of law.

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The law, approved by the Madrid Assembly with the votes in favor of PP and Vox, does not turn the unborn conceived into a legal person, but recognizes public aids, scholarships, or tax benefits without having to wait for the baby’s birth. Every pregnant woman will be considered to already have a child and will count as such when applying for any aid or benefit that depends on the Community of Madrid.

To access these benefits, families must present a medical report certifying the pregnancy, issued within the five working days prior to the application. In addition, families who already have two children will be considered large families from the day after the 14th week of pregnancy of the third child ends, which will allow them to access tax deductions and discounts on public transport, among others. This last point of the regulation will come into effect in January 2027.

“Neither the Community of Madrid nor any autonomous community can grant legal personality to the unborn conceived, who becomes a person with their own rights once born, as provided by the Civil Code,” explains Marta Ariste, family lawyer. The main novelty of the Madrid law is that it anticipates part of that recognition to the gestation period, but only for administrative and tax purposes.

The jurist recalls that the unborn already enjoys legal protection. This happens, for example, in inheritance matters, where a person can name their future child or descendants existing at the time of their death as heirs. “That fetus, that future baby, already has protection and must be compensated, provided it is born,” Ariste recalls.

If there is any interruption of the pregnancy, for whatever reason, the family will not have to return the aids they have received. If they had already obtained the large family card, they must report it within three months.

There are also specific provisions in areas such as traffic accidents, workplace accidents, or certain compensations. “In traffic accidents, the loss of a pregnancy is already contemplated in scales that vary depending on the week of gestation and are recognized as part of the damage suffered by the mother. If the baby is born alive and presents sequelae derived from the accident, they may also be entitled to compensation,” the jurist points out.

Unlike traffic scales, in the field of terrorism they are not regulated. Law 29/2011 on Recognition and Comprehensive Protection of Victims of Terrorism provides for compensation for death, injuries, disabilities, and physical or psychological damage, but does not expressly regulate gestational loss. “If a woman loses the pregnancy as a consequence of an attack, the reparation is articulated through the physical or psychological injuries suffered by the mother,” Ariste states.

In the Hipercor terrorist attack on June 19, 1987, one of the cashiers, Milagros Rodríguez, was pregnant when the car bomb exploded. She survived with minor injuries and, months later, gave birth to her daughter Jessica. When the child was about one year old, doctors diagnosed her with profound bilateral deafness. The trial had already taken place when her case came to light, and neither Milagros nor her daughter could be included as victims.

Jessica was not recognized as a victim of terrorism because she had not been born when the attack occurred. In 2003, everything changed. A new trial against two of the people responsible for the attack allowed her to be incorporated into the procedure, and they managed to prove that the injury she suffered originated from the attack.

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“If we had not located Milagros and found a doctor willing to certify that the deafness was a consequence of the attack, Jessica would never have been recognized as a victim,” says Robert Manrique, survivor of the Hipercor attack and former advisor to the Unit for Attention and Assessment of Victims of Terrorism (UAVAT).

Jessica’s case led to her recognition as a victim after birth, that is, once there was a person with legal personality and the causality of the attack with her deafness could be proven.

For Manrique, the new Madrid law poses a contradiction that goes beyond the administrative field. “If a conceived can be considered a member of the family unit and generate tax rights or public aids before birth, why does that same conceived receive no recognition when the pregnancy is lost as a consequence of a terrorist attack?” he asks. The truth is that law 29/2011 does not provide specific recognition for gestational loss. Generally, that damage is assessed as part of the physical and psychological injuries suffered by the mother.

The activist also questions its application and recalls that article 11 obliges administrations to inform and advise victims about the aids and benefits they can access, a task that, under his 38 years of experience, is not always fulfilled. “If the Administration really did that work, entities like UAVAT would not exist,” he argues. Although the entity closed three years ago due to lack of resources, its volunteers continue to support dozens of those affected by the 2017 La Rambla attack.

Manrique also advocates for a review of the deadlines to request compensation. The law establishes only one year from the attack or from the consolidation of the injuries. “It is a very short period. In other countries, such as France, victims have ten years.”

The far right wants to go further and grant legal personality to the unborn conceived, which would imply a reform of the Civil Code. “It is a rule that provides legal certainty. If that moment were anticipated to gestation, many other rules such as the abortion law would have to be reconsidered, as both would come into conflict,” warns Ariste.

The lawyer also raises doubts about the practical consequences of such a change. “What would happen if rights were recognized to the conceived and the pregnancy did not come to term? What effects would that legal personality have?” she wonders.

Regarding the Madrid law, Ariste questions the measure and warns that “those who need them most are families with fewer resources, but the cost of raising a child goes far beyond a specific benefit nor do they solve the problems faced by many families with children.”

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