Legal Definitions - abortive child

The term abortive child is an archaic legal phrase that historically referred to a fetus that was miscarried, stillborn, or born so prematurely or with such severe deformities that it was not considered viable or "born alive" in the legal sense. In older legal frameworks, the distinction between a child born alive and an "abortive child" was significant, particularly in matters of inheritance, property rights, and succession, where the existence of a living child was often a prerequisite for certain legal outcomes. Modern legal terminology typically uses more precise terms like "fetus," "stillbirth," or "miscarriage" to describe these situations, focusing on the specific stage of development and the legal rights or implications involved.

Here are some examples illustrating how this term might have been applied in historical legal contexts:

• Inheritance and Wills: Imagine a will from the 17th century that stipulated, "My lands shall pass to my eldest son, and if he dies without living issue, then to my nephew." If the eldest son's wife gave birth to a stillborn child, that child would have been considered an abortive child. Legally, this meant the condition of "living issue" was not met, and upon the son's death, the lands would then pass to the nephew, bypassing any claim through the stillborn child.

  This example demonstrates how the legal classification of an "abortive child" could directly impact the line of succession and the distribution of property according to a will, as the child did not fulfill the requirement of being born alive.

• Property Rights (Dower): In some historical legal systems, a widow's right to dower (a portion of her deceased husband's estate) was contingent upon her having borne a child capable of inheriting the estate. If a woman experienced a miscarriage or gave birth to a stillborn infant, this abortive child would not have been considered to meet the legal requirement for her to claim dower, as no living heir was produced to inherit from her husband.

  This illustrates how the legal status of a birth as an "abortive child" could affect a spouse's entitlement to property rights, linking the birth of a living heir to specific spousal benefits.

• Feudal Succession to Titles: Under certain ancient feudal laws, the succession to a noble title or a significant estate might have required the birth of a male heir who was not only born alive but also met specific criteria, such as "crying within four walls" to prove vitality. If a child was born but was stillborn or died immediately after birth without fulfilling these precise conditions, it would have been regarded as an abortive child and would not have been counted as an heir for the purpose of succession to the title or lands.

  This highlights how specific historical legal requirements for a "live birth" meant that an "abortive child" would not qualify for succession to a title or estate, emphasizing the legal importance of viability and specific proof of life.