By : Sara Maheshwari | Student | Symbiosis Law School , Pune
INTRODUCTION:
Laws in India are well defined for physically existing human beings, but it is equally important to understand the legal aspect of an unborn child under different statutes. The word ‘unborn’ is a legal moot point since decades; and can be associated with the legal maxim ev ventre sa mere, which means ‘in a mother’s womb’. Before discussing an unborn’s rights, the question arises if an unborn is even considered a ‘person’ in the eyes of law; as only then can he claim his rights. Various international conventions and treaties like the Universal Declaration on Human Rights, Convention on the Rights of Child, etc. have reiterated that life, in general, should always be protected.
LEGAL OVERVIEW:
Unborn, in layman’s terms, means who is not born. In legal terms, there are three stages of an unborn child as per the Indian Penal Code (IPC)- an unborn child simpliciter, where the woman is quick with child, and lastly the unborn child being capable of being born alive. The law has a duty to protect them, and is expected to have a defined legal structure for these prenatal humans.
Sections 312 and 313 of the Penal code protect a pregnant woman against abortion. Section 312 says that miscarriage is a legal offense and prescribes punishment for it; and Section 313 defines stricter punishment where the abortion is without the mother’s consent (forced against her will). Both these sections protect the mothers from physical interference, and violation of their bodily and child rights. In addition, termination of pregnancy is legally allowed to safeguard the health of the mother. The Medical Termination of Pregnancy Act, 1971 allowed abortion up to 12 weeks, then 20 weeks on further medical opinion; and the Amendment in 2020 increased the limit to 24 weeks in exceptional cases. The law has to balance both the needs of the mother and the unborn. There might be a moral and ethical collision where the mothers have to decide to ensure their own safety or their child’s, as the sanctity of both lives needs to be considered.
NEED FOR PROTECTION:
In India, the major reason to protect the rights of an unborn is to prevent abortion of sexually determined girls. Protection of laws is necessary to maintain adequate gender ratio, to have a stable social structure in India. The Constitution of India has till date been unable to answer if a child in the mother’s Metra can be rewarded the same rights as a normal human being.
It is a myth that the development of brain and body begins only when he comes out of the mother’s womb. The heart of an unborn starts beating between 18 to 24 days of pregnancy, which means there is a whole new life in the uterus of a woman. Though all the organs of the child get developed by the 8th week, the heart starts beating between the 2nd and 3rd week of pregnancy. According to the World Medical Association, the life of an individual human begins with conception and ends with death.
According to Article 21 of the Indian Constitution no person shall be deprived of his life or personal liberty except according to procedure established by law; and a person is defined as a human being which has come out of the mother’s womb. Hence, technically, the right to life does not protect an unborn child; but certain protective measures are taken to compensate the lack thereof.
RELATED INTERNATIONAL DECLARATIONS:
Children are considered God’s blessings, and historically, the only aim has always been to protect and nurture them. The doctors since the 19th century, have been taking the Hippocratic Oath, to serve their best for the mother and child’s interests. The 1924 Geneva Declaration for Rights of Child is among the first recognition for requiring special laws to protect children. It highlights the need for legal protection for children ‘before as well as after birth’. The Geneva Protocol 2 stated that death penalty cannot be imposed on pregnant women, or on women with young children. The prime concern of the Geneva Protocol 2 was safety of an unborn child, and the law cannot take away the life of an innocent who is still in his mother’s Metra. Hence, it is quite vivid how international conventions treat unborn children similar to normal children, which makes a foetus deserve every fundamental right.
To critically analyse the rights of an unborn, allowing abortion under Medical Termination of Pregnancy Act is also a matter of concern as if the infant starts developing since its day of conception, isn’t the act of aborting a live baby murder? The unborn breathes and performs bodily functions just like any normal person, but the law is still confused regarding its legal status. Article 21 should protect an unborn just like anybody else, as the unborn will one day come out of the mother’s womb and demand the rights he deserves.
INDIAN LAWS WHICH PROTECT THE UNBORN:
Despite the loopholes in some statutes, many Indian laws are comprehensive enough to consider the rights of an unborn as well. The word minor in Section 6 of the Limitation Act, 1963 which deals with legal disability includes a child in the womb. A foetus is also included in the category of minors according to The Indian Succession Act, 1925. The Indian Penal Code, 1860 has especially emphasised on unborn children; where Sections 312 to 316 punish anyone, who harms a quick unborn or prevents the birth of one. The Hindu Succession Act, 1956 acknowledges the right of a child in the womb, and he/she can subsequently inherit intestate of a dead person. Section 20 of the Act says that the property rights of an unborn child are governed by the fact the foetus is present in the womb at the time of death of the person whose property is to be transferred; and subsequently if the child then survives, he/she will have the same rights as an heir would have had, had he/she been born before the death of the property owner.
Section 13 of Transfer of Property Act, 1882 allows the transfer of property for the benefit of an unborn child/ infant in its mother’s Metra. Section 416 of The Code of Criminal Procedure, 1973 orders the High Court to postpone the death sentence of a woman found to be pregnant, or the sentence can be commuted to life imprisonment. The ultimate aim of this provision is to save the innocent unborn, to not punish him for his mother’s crime, and providing him with his mother’s love and affection. Indirectly, the Code of Criminal Procedure has recognised right to life of an unborn.
A society’s true revelation is the way it treats its children, and sometimes intentionally or unintentionally, it ends up in causing injury to a child. Sterilization is one such instrument, which might be a boon to keep the population in control, but it puts an end to the child’s life. Tubectomy and vasectomies are legal in many countries, and petty reasons like monetary benefit can take away the life of an innocent. The Medical Termination of Pregnancy Act 1971 allows a woman to abort in case of failure of contraception and this, yet again, is against the right to life. At the same time, it is important to keep in mind certain circumstances where abortion becomes inevitable, for example in rape cases, or when the victim is too young, etc. Sometimes, sensitivity of the issue overpowers the right of an unborn, and such exception seem reasonable. There are many cases of forcing a pregnant woman to work, resulting in miscarriage. Working overtime and not getting paid leaves can be physically, emotionally and mentally exhausting for a pregnant woman. Poor families which are wilfully unaware of hygiene and healthcare have a careless attitude towards the to-be-mother. Forcing her to earn for the family can cause a serious threat to the child’s development.
New parents can also be irresponsible and careless, not taking timely medications, consuming alcohol and drugs, smoking etc. can heavily damage the new born. Even smoke inhaled by a pregnant woman can affect the child, and even a slight negligence can ask for a heavy price. Lastly, but the most common in India especially, sex determination is a primary cause for female infanticide. The Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 prohibits illegal sex determination, in an attempt to stop the discriminatory murder of females.
CONCLUSION:
At the present, it is unclear if a foetus can be granted right to life, and there are people debating on both sides of the matter. Some say that an unborn start developing as an individual, has the same bodily functions, and will one day come out of the Metra; while others say that it is yet to come to existence and can only be considered human after the delivery. Nowadays due to advancement in technology and medicine, Even the DNA of an unborn can be disclosed, and it definitely is a human life, not a mere potential hypothesis. It is more than logically comprehensible that when a baby is born, it has a thumping sensitivity and recognized mind impression.
REFERENCES:
1. Vartika Shukla, Rights of an Unborn Child with Reference to Article 21 of the Indian Constitution, LEXFORTI (July 3, 2020) : Link
2. Alka Kuthe, Divyangee Kuthe, Legal Rights of the foetus, 8.3 New Indian Journal of Pediatrics, (2019).
3. Surbhi Gupta, Can Property be Transferred to an Unborn Child?, MAKAAN (August 24, 2017) : Link
4. PRS INDIA : Link
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