Legal Personality Of Unborn Child And Dead Person

Introduction

It is very tough in this legal system around the world when it comes to defining who has rights and duties, who has the right to sue and to be sued. The question is very tricky: when does a human life truly begin, and when does it end? This question is particularly complicated for the unborn child and the dead person.

This article is wholly about how law treats these two segments described above. We will clear our understanding about:

• Do unborn children and dead persons have rights?
• Can they have the power to sue?

We will also delve deeper by examining different case laws relevant to each of them.

Legal Personality

Legal Personality is understood as the capacity of an entity to be recognized as capable of rights. A legal person has a legal name, rights, privileges, liabilities, and responsibilities.

There are two essential components to be a legal person:

1. Corpus: Refers to the physical body.
2. Animus: Refers to the intention of the sovereign or the government in recognizing that person as a legal person.

Definition of Legal Personality

Salmond: Defines a person as any being to whom the law regards as capable of rights and duties.

Criticism of Salmond’s Definition:

• Some critics argue that this is a circular definition, as he does not explain why rights and duties are attributed only to a few entities.
• The definition is considered incomplete because it does not address situations such as the legal personality of the unborn child and the dead person.
• Salmond is criticized for overly emphasizing the role of the state in providing rights and duties.

Kelson: The person exists only insofar as he has rights and duties; apart from them, a person has no existence whatsoever.

Criticism of Kelson’s Definition:

• Kelson nearly forgets to mention the difference between a natural person and an artificial person.

Legal Personality of an Unborn Child

Technically, an unborn child is not a person, but due to legal fiction, he is considered as already born. This means an unborn child is granted a certain legal personality if the child is born alive. Hence, a child in the uterus has a legal personality to an extent. It is a contingent right, as the child gets all rights only when born.

Legal Maxim: Nasciturus pro jam nato habetur – An unborn child will be considered as already born as far as benefits are concerned.

Rights of Unborn Child

• Indian Succession Act: Property can be made in the name of an unborn child if he is subsequently born alive.
• Section 416, CrPC: Postpones the capital sentence of a pregnant woman.
• Section 13, Transfer of Property Act: Transfer for the benefit of an unborn child can be made by creating a prior interest in favour of a living person.
• Sections 312–316, IPC: Deal with offences related to causing miscarriage and injuries to the unborn child.
• Medical Termination of Pregnancy Act: Prohibits medical termination after 24 weeks of pregnancy, except in cases of fetal disability, mental insanity, or rape.

Case Laws

1. Nand Kishore Sharma vs. Union of India (2005, HC): Rejected a challenge to the constitutional validity of the MTP Act on the grounds that it violates the fundamental rights to life of an unborn child.
2. McFarlane vs. Tayside Health Board: A woman, 7 months pregnant, fell due to a bus driver’s negligence, and the child was born with deformity. It was held that the unborn child has the capacity to sue.

Legal Personality of a Dead Person

Salmond stated that “the personality of a human being may be said to commence with his birth and cease with his death.” Thus, dead persons are no longer considered persons in the eyes of the law. However, any will made by a dead person becomes effective after his death.

Exceptions to the Rule

• Man’s Body: Every dead person has the right to a decent burial according to their religious beliefs. Any act of indignity to a corpse is punishable under Section 297 IPC.
• Reputation: A dead person cannot be defamed. If someone defames a deceased person, the family can file a defamation suit. It is punishable under Section 499 IPC.
• Estate: The estate of the dead person is distributed according to his will.

Case Laws

1. Aashray Adhikar Abhiyan vs. Union of India (AIR 2002 SC): Held that even a homeless person, when found dead on the road, has the right to a decent burial or cremation as per their religious beliefs.
2. Pt. Parmanand Katara vs. Union of India (AIR 1995 SC): The Supreme Court held that the right to dignity and fair treatment under Article 21 of the Constitution extends to the dead as well.
3. Sethu Raja vs. Chief Secretary (AIR 2007, Madras HC): The Madras High Court directed government authorities to bring a dead body from Malaysia for burial in the hometown according to tradition and customs.

Sources

• India Kanoon
• CaseMine
• IPC
• TPA