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Status of an Unborn Child in the Indian Legal System

Status of an Unborn Child in the Indian Legal System
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                      Status of an Unborn Child in the Indian Legal System

The pedestal of an unborn child has been pretty ambiguously exciting withinside the Indian Legal System. One of the maximum controversial subjects is whether or not the rights of a fetus are at par with a living individual and whether or not it involves those rights in relation to it being a legal successor to property. A fetus at the same time as inside the mother’s womb is in its growing and developing ranges to form a separate living individual. It is known that a fetus’s heart begins evolving between the second one and third weeks of pregnancy. So, the query of regulation that arises over here is whether or not a fetus, who isn’t born but has the ability to emerge as an individual person in the future, can maintain equal rights in society similar to a regular residing person. Article 21 of the Constitution states that “No person will be deprived of his life and personal liberty except according to the procedure established by law”. It appears that it’s a matter of concern for lawmakers in relation to figuring out the status of the fetus in the Indian Constitution. It has always been a matter of confusion and is still doubtful whether or not an unborn child needs to be given the rights much like a child.

1) Rights of an Unborn Child:

The question of the status of an unborn child in the Indian legal and social system continues to be grey area and there is not much clarity on the position and rights of a fetus. However to get a clear idea of the general provisions the law has to offer to safeguard the life of an unborn child, let us study the following acts:

  • The Indian Penal Code, 1860:

Section 312 to 316 of the Indian Penal Code states that anyone who prevents a child from being born alive, or for causing the death of a quick unborn child will be punished depending on the case type.

Section 312 of the Code states that:

According to section 312 of Indian penal code, Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Section 313 of the Code reads:

 Causing miscarriage without a woman’s consent.—Whoever com­mits the offense defined in the last preceding section without the consent of the woman, whether the woman is quick with a child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 314 of the Code states that:

 Death caused by act done with intent to cause miscarriage.—Whoever, with intent, to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; If the act is done without woman’s consent.—And if the act is done without the consent of the woman, shall be punished either with 1[imprisonment for life] or with the pun­ishment above mentioned. Explanation.—It is not essential to this offense that the of­fender should know that the act is likely to cause death.

Section 315 reads:

 An act was done with the intent to prevent a child from being born alive or to cause it to die after birth.—Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act is not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

Section 316 of the Code states that:

 Causing the death of a quick unborn child by act amounting to culpable homicide.—Whoever does any act under such circum­stances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Illustration A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured but does not die, but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offense defined in this section.

From the aforementioned sections, we can understand that the IPC specifically deals with the death of a quick, unborn child. This section states that an unborn child is someone whose movement has already begun in the mother’s womb and the person who does any action and causes the death of someone and would be guilty of responsible homicide, and by doing it same act, causes the death of a quick, unborn child, has committed an offense under Section 316. They shall be accountable for the imprisonment of 10 years as well as the fine.

  • The Hindu Succession Act 1956:

Section 20 of The Hindu Succession Act 1956 states that

“A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.”

It simply means that the property rights of an unborn baby are ruled by the fact that a baby who was in the womb at the time of the demise of the person who wishes to transfer the property and is later born alive has the same privilege to inherit as though she or he were born earlier than the demise of the property owner, and the inheritance is deemed to vest in such case with effect from the date of the intestate’s demise.

According to Section 20, an unborn child who has come into existence will inherit only if:

(i) The child was conceived at the time of death of the property owner, and

(ii) The child is born alive

  • The Transfer of Property Act 1882:

Section 13 of the Transfer of Property Act states,

  “Transfer for benefit of an unborn person.—Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property. Illustration A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect because it does not extend to the whole of A’s remaining interest in the property.”

Section 13 implements the overall rule that infections occur only among living people. It cannot be despatched to a person who does now no longer exists or isn’t always born. This is the motive why Section 13 makes use of the expression switch ‘for the benefit of’ and not transfer ‘to’ unborn person. A baby in the womb is considered a capable assignee. As a result, the property may be transferred to a child inside the mother’s womb due to the fact the child is there at the time, but not to an unborn individual who isn’t in the mother’s womb. Every property transfer involves a transfer of interest. The transferor loses his or her privilege in the property as soon as it’s transferred, and the transferee gains it. It is therefore essential for the transferee to exist so as for the interest to be vested.

  • The Code of Criminal Procedure:

In Section 416 of The Code of Criminal Procedure,  it is inscribed that High Court shall order the execution of sentence to be postponed if the woman to which the death penalty is given is found to be pregnant and may if it thinks correct, commute the sentence to imprisonment for life.

Section 416 of the CrPC which is associated with the position of an unborn child under criminal law, reads as follows:

“Postponement of capital sentence pregnant woman. If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life.”

Under the above regulation, it is clear that the fetus is taken into consideration as a regular human being and is enough to conclude that the fetus is subject to the “right to life” under Article 21 of the Constitution of India. The above regulation makes it clear that there may be no distinction between a fetus and a regular human being. Fetuses and normal children are subject to the “right to life” notwithstanding their caste, creed, gender, or nationality. Therefore, the regulation ought to clearly state that Article 21 should be given to the fetus and that he or she is expected not to be distinguished from a regular child in any case.

  • Medical Termination of Pregnancy Act:

With the adoption of the Medical Termination of Pregnancy (MTP) Act in 1971, abortion has been legally allowed in India under numerous conditions for the past 50 years. In 2003, the regulation was modified to permit women to get the right of entry to secure and legal abortion services. The MTP Amendment Act of 2021 was given the green signal in 2021, permitting all women to access secure abortion services on the grounds of contraceptive failure, lengthening the gestation restriction to 24 weeks for certain groups of women, and requiring the opinion of one provider up to 20 weeks of pregnancy. Abortion can now be completed as much as 24 weeks of pregnancy, due to the MTP Amendment Act 2021, which was implied on September 24, 2021, after being published in the Gazette.

If the pregnancy has not exceeded 12 weeks, only one Registered Medical Practitioner needs to be satisfied that the conditions for abortion have been fulfilled. However, if the pregnancy has exceeded 12 weeks and is below 20 weeks, two Registered Medical practitioners need to be satisfied that the conditions for abortion have been fulfilled.

2) Status of an Unborn Child in Foreign Jurisdictions:

  • The United States of America

With some exceptions carved out to hold the rights and pursuits of born individuals, the legal system in the United States has taken into consideration the fetus as a crucial part of the female bearing it and has granted it no rights as an entity independent from her. The courts have recognized the fetus’ rights, which have historically been enjoyed by people who regard the infant as a distinct creature from the woman carrying it, with stakes that can be glaringly opposed to the pregnant mother. A certain assessment of all potential results must impact the communal desire of the way the legal system must perceive the fetus.

Except for a few extremely specialized uses, the law did not recognize the existence of the fetus until recently. The unborn have never been recognized in the law, and the law has been unwilling to grant any legal rights to fetuses “unless in narrowly specified instances and only when the rights are contingent upon live delivery,” as the Supreme Court noted in Roe v. Wade in 1973. These exceptions were in line with the idea of the fetus as a part of the woman because they needed a live birth. The fetus was not given any rights apart from the pregnant woman, and it was only after the fetus was born alive that the fetus was given legal rights as a separate legal entity.

Prior to 1946, the Legal courts did not permit tort claims with regard to prenatal injuries. Nevertheless, in the present scenario, the particular Courts allow tort claims for payment against third parties for the afflictions the individual has experienced consequently associated with any injury caused on the pregnant lady. The intention of granting recovery within cases of prenatal injury is in order to compensate the postnatal child for the particular affliction it ought to bear. Recovery is just not, therefore, an acknowledgment that the prenatal child has lawful rights. Hence, the particular law of the fetus doesn’t grant any kind of rights to the particular fetus. Therefore, it was consistent with the view that it did not recognize a fetus as an entity separate from the pregnant woman. Recognition of this kind of fetal interest has been necessary to safeguard the rights plus interests of the particular born individuals which include the child as well as the parents. Furthermore, this doesn’t create any kind of conflict with the particular interests of the woman.

Due to the decision of the Court in Roe v. Wade, the particular Courts have progressively granted rights in order to the fetus which does not need a live delivery requirement. Traditionally, the courts did not really consider destruction associated with fetus within the utero as homicide; the particular alleged victim should have been given birth alive. However, the particular Supreme Judicial Courtroom of Massachusetts lately became the first American court in order to tale an opposite viewpoint. It held that the fetus will be a person within the meaning of the Massachusetts vehicular murder statute, and therefore a victim of a homicide victim. Likewise, several states have adopted legislation that usually criminalizes the destruction of the fetus.

The USA has also passed The Unborn Victims of Violence Act, 2004. The Act defines the term ‘unborn child, which means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens at any stage of development who is carried in the womb. It states that whoever causes death or bodily injury to a child who is unborn at the time, i.e. is in utero at the time the conduct takes place, is guilty of a separate offense under subsection (b) of the Act.

  • United Kingdom:

Under English law, a fetus is not a legal entity until birth. Abortion or termination of pregnancy was a common-law crime in the United Kingdom but was rarely prosecuted, as provided in the Offenses Against the Persons Act of 1861 (OAPA, Sections 58 and 59). The 1929 Special Newborn Life Support Act succeeds in inducing criminal offenses to “can be born alive” but to kill or destroy a child that did not yet exist independently of the mother’s body. Did. It does not cause miscarriage (as defined in the relevant OAPA), or cause the killing or manslaughter (or infanticide) that can occur at the birth of the child.

The case of the R vs Bourne case clarified the law by establishing conditions under which it may be legal to have an abortion (OAPA defines only illegal abortion as a crime). Coupled with the Infant Life Protection Act, this meant that there were legal restrictions on abortion. The 1967 Abortion Act, amended by the 1990 Human Abortion Act, formalized and clarified the legal framework for legal abortion and introduced a regulatory system. Paton v British Pregnancy Advisory Service states, “Under English law, a fetus cannot have its own rights until it is born and separate from its mother.”

3) Conclusion:

The specific rights of an unborn child continue to be a matter of dispute and great concern, not only in India but in many countries around the world. There are many grey areas regarding the fetus being considered a separate living entity from its mother and its acknowledgment as a living being depending on the number of days or weeks of gestation. In India there are several provisions and laws created for the protection of a fetus however deeper clarity and stricter laws will help society fight against unwarranted and illegal abortions. This will also help understand the acknowledgment or defiance of an unborn child as a legal living entity with the same rights and privileges as a child.

4 References:

  1. Thakur, (June 25, 2018), blog ipleaders, Rights of an Unborn Child in the USA and India: A Comparison. https://blog.ipleaders.in/rights-unborn-child-usa-india-comparison/
  2. Shukla, (July 3, 2020), Lexforti, Rights of an Unborn Child with reference to Article 21 of the Indian Constitution. https://lexforti.com/legal-news/rights-of-an-unborn-child-with-reference-to-article-21-of-the-indian-constitution/#The_Indian_Penal_Code_1860
  3. Narayan, Legal Service India E-Journal, Rights and Status of Unborn. https://www.legalserviceindia.com/legal/article-3345-rights-and-status-of-unborn.html
  4. Bhatia, (October 1, 2021), SCC Online Blog, Transfer of Property to a Child in a Mothers Womb, https://www.scconline.com/blog/post/2021/10/01/transfer-of-property/
  5. Bilawala, ( August 20, 2019), Livemint, Bequest to the unborn child is void if there’s no intervening life interest. https://www.livemint.com/money/ask-mint-money/bequest-to-unborn-child-is-void-if-there-s-no-intervening-life-interest-1566323060900.html
  6. Madhumitha, (February 20, 2022), Law Circa, Laws Related to Miscarriage of Foetus in the womb in India. https://lawcirca.com/laws-related-to-miscarriage-of-foetus-in-the-womb-in-india/
  7. Kamale, Rights of Unborn Child and Social State of Antenatal Care, New Indian Journal Of Paediatrics. https://nijp.org/rights-of-unborn-child-and-social-state-of-antenatal-care/
  8. Koundal, Mera Legal, Right of Child in the womb under Hindu Succession Act 1956, https://www.shareyouressays.com/knowledge/right-of-the-child-in-womb-under-hindu-succession-act-1956/117756
  9. Vikaspedia, Law on Abortion. https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/law-on-abortion
  10. Poojith, (August 1, 2019), FoxMandal, Property Rights of an Unborn Child in India, https://www.foxmandal.in/property-rights-of-an-unborn-in-india/
  11. Nehra, Rajput, (2019), Amity International Journal of Juridical Sciences, The Legal Personality of an Unborn Child: A Comparative Analysis of USA & India. https://amity.edu/UserFiles/aibs/a6c02019%20AIJJS_92-105.pdf
  12. Alston, P. (1990). The Unborn Child and Abortion under the Draft Convention on the Rights of the Child. Human Rights Quarterly, 12(1), 156–178. https://doi.org/10.2307/762174

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