BY DANIEL MUKELABAI
ABSTRACT
The commencement of human life is a process both remarkable and precarious. A fertilized cell divides and multiplies, forming a cluster that folds into primitive tubes, sprouts organs and limbs, and retains vestiges of natural ancestry: a yolk sac that later dissolves, arches in the jaw and throat reminiscent of gills, and three foundational layers consisting of the ectoderm, mesoderm, and endoderm that differentiate into skin, nerves, bones, and other organs.
Development is cumulative rather than abrupt, a palimpsest of biological design. Yet it is fraught with risk: early genetic patterning tolerates virtually no error, and a significant proportion of embryos are lost spontaneously, often before pregnancy is clinically recorgnised. This biological reality constitutes the factual substratum upon which any legal or moral discourse concerning the inception of life must rest. Perspectives on when life begins: from a biological standpoint, life is continuous.
Cellular division has persisted for thousands of years, and fertilisation, though often cited as a definitive starting point, is but one stage in that continuum. The ovum itself predates fertilisation, alters its trajectory but does not reset its temporal existence. The conception-based view emphasizes potential: a fertilized egg may develop into a unique individual. Yet anomalies complicate this assertion. Identical twins derive from a single fertilized egg dividing into two persons. Conjoined twins raise a question of partial division – whether one or two persons exist. Chimaeras result from the fusion of two embryos into one individual.
Modern science further unsettles the boundary; as adult cells can be reprogrammed into embryonic cells capable of development. If potential alone confers personhood, the category expands beyond practical recognition. An alternative view locates personhood in neurological development. Early embryos lack a brain nervous system and thus cannot perceive or exercise awareness. If personhood requires minimal capacity, fertilized eggs do not qualify. Yet this approach must contend with infants and persons with diminished cognition, who remain legal persons.
Nonetheless, legal and social practice already distinguishes based on brain function: two functioning brains sharing one body are treated as two persons; one functioning brain with multiple limbs is treated as one. Rare conditions where a second head has a brain but no independent function reinforce that consciousness is integral to personhood. Viability outside the womb is another proposed threshold. Yet viability is contingent upon medical technology and varies across jurisdictions and eras. A foetus may survive at approximately twenty-four weeks with intensive care, but not earlier. If personhood depends on technological capacity, definitions become unequal and unstable.
WHAT DOES THE LAW SAY AS TO WHAT IT RECORGNISED AS A PERSON AND WHEN LIFE BEGINS?
Law must, in truth, impose a definitional clarity where biology offers gradations. International human rights law accords rights at birth. The Universal Declaration of Human Rights and the International Convention on Civil and Political RIGHTS (ICCPR) affirm that all human beings are free and equal in dignity and rights. Criminalizing abortion equates the rights of a zygote with those of a living woman, thereby undermining her autonomy and equality.
Zambian statutory law provides specific delineations under the penal code; murder is the unlawful killing of a person with malice aforethought. A child becomes a person capable of being killed only once it has proceeded in a living state from the mother’s body, irrespective of breathing, circulation, or severance of the umbilical cord. Prior to that, the offence of “child destruction” applies:
‘Any person who, with intent to destroy the life of a child capable of being born alive, causes its death before independent circulation or existence commits a felony punishable by life imprisonment.’
However, acts performed in good faith solely to preserve the life of the mother are exempt. Pregnancy of twenty-eight weeks or more constitutes prima facie proof of capability of being born alive. Thus the law distinguishes murder (post-birth), child destruction (late gestation), and lawful medical termination.
The Termination of Pregnancy Act (Cap. 304) further regulates lawful abortion. Termination by registered medical practitioners is lawful where, in good faith, they certify that continuation of pregnancy would pose a greater risk to the woman’s life, her physical and mental health or the health of her existing children, or where there is substantial risk of serious fatal abnormality. In emergencies, a single practitioner may act immediately to save the woman’s life or prevent grave injury, as in the case of R v Bourne. Procedures must ordinarily occur in hospitals, and certification, notification and confidentiality are strictly regulated. Accordingly, abortion under statutory grounds is not homicide but a regulated medical procedure.
SO THEN IS ABORTION MURDER?
Murder is a legal classification and not a rhetorical device. Its application depends upon whether the entity terminated is legally recorgnised as a person and whether the act is unlawful. Under the penal code, murder attaches only to born persons. Prior to birth, the relevant offence is child destruction. As stated in the case of Rance v Mid Downs Health Authority, the court stated
'That a child must be fully born, breathing and living by reason of its breathing through its own lungs alone, without deriving any of its living or power of living by or through any connections with its mother, to be said to be born alive... thus, a foetus of 26 weeks' gestation was capable of breathing if born, so the foetus in question was a child capable of being born, and consequently, any abortion performed on that foetus would be unlawful.'
The Termination of Pregnancy Act removes lawful medical terminations from criminal liability. Thus abortion performed in accordance with statutory provisions is not murder. Internationally, human rights affirm that personhood and rights attach at birth. Restrictive abortion laws do not reduce incidence but increase unsafe procedures, disproportionately affecting disadvantaged women. World Health Organizations (WHO) data affirms that unsafe abortions account for tens of thousands of deaths annually. To equate abortion with murder is to undermine both statutory definitions and empirical realities.
WHAT SCIENCE, OR SOME EXPERT EVIDENCE, EXPLAINS ABOUT DEVELOPMENT
Scientific chronology demonstrates gradual development. Fertilisation initiates division; implantation secures maternal support; organogenesis proceeds in stages. The heart exhibits rudimentary pulsing around six weeks; neurones begin forming soon thereafter; coordinated brain function emerges only around twenty-two weeks. Development is incremental, not instantaneous. Fragility is inherent; spontaneous loss is common, and early genetic errors are often fatal. These facts challenge definitions that confer full personhood at fertilisation; technological advances complicate matters further. Adult cells can be reprogrammed into embryonic-capable cells, undermining fertilisation as the sole origin. Viability is contingent and unequal, shifting with medical capacity. Science thus resists bright-line definitions of personhood.
BODILY AUTONOMY
The law balances protection of life with protection of autonomy. Bodily integrity is paramount: individuals are not compelled to donate organs or blood even where refusal results in death. Pregnancy, though unique, implicates the same principle of consent. International human rights bodies emphasize that women’s rights to equality, dignity, privacy and health must be central. Criminalizing abortion constitutes gender-based discrimination and, in some circumstances, cruel or degrading treatment.
Zambian law reflects balance; the Termination of Pregnancy Act permits abortion under defined grounds, with certification and confidentiality safeguards and emergency exceptions. The penal code distinguishes murder from child destruction, recorgnised as maternal life exceptions, and sets viability presumptions. Together these provisions regulate abortion as a medical procedure, not as homicide, while preserving state interest in gestational life.
FOOD FOR THOUGHT
In spite of the aforementioned, however, the tensions remain unresolved. Biology offers continuity, not discrete inception. Neurological development is gradual, viability is contingent, and international law anchors rights at birth; Zambian law distinguishes murder, child destruction and lawful termination. Autonomy demands respect for consent; protection of gestational life demands recognition of vulnerability; whether abortion constitutes murder depends upon definitions of personhood and lawfulness. Legally, early lawful termination is not murder; late intentional destructions may constitute a distinct felony unless performed to preserve maternal life. Scientifically, development is complex and fragile; morally, convictions diverge. No single domain provides a definitive answer. Where the line is drawn reflects societal commitments as much as biological or legal fact, and I shall leave that with you.
BIBLIOGRAPHY
International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
Penal Code Chapter 87 of the Laws of Zambia
Termination of Pregnancy Act cap 304
United Nations Universal Declaration of Human Rights 1948
R v Bourne 1938 1 KB 687
Rance v Mid Downs Health Authority 1991 1 All ER 801 QB
Re A (conjoined twins) 2 2001 WLR 480
Other sources
"Embryology, Fertilisation - StatPearls - NCBI Bookshelf" https://www.ncbi.nlm.nih.gov/books/NBK542186/#:~:text=Introduction,itself%20goes%20through%20drastic%20changes
"Abortion" https://www.who.int/news-room/fact-sheets/detail/abortion
https://news.ucsc.edu/2025/03/scientists-program-stem-cells-to-mimic-first-days-of-embryonic-development/#:~:text=The%20CRISPR%20programming%20not%20only,to%20fail%20in%20early%20stages
"The beginning of human life – PubMed" https://pubmed.ncbi.nlm.nih.gov/8589565/
https://share.google/sg0Et9LvbELVwldBO
about author:
Daniel Mukelabai is a legal graduand from the Copperbelt University, he writes this in his individual capacity