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Rights, Identity and Protections for the Unborn Child in Indian Law

A child still in the womb is unborn child. The Transfer of Property Act, 1882 and the Hindu Succession Act, 1956 laws in India mention the unborn child and have created its legal identity by fiction. Although there is no specific legislation defining the rights and position of an unborn child, the state must intervene in inheritance cases once the unborn child is viable. Nonetheless, the Medical Termination of Pregnancy (MTP) Act aims to limit abortions beyond the 20-week timeframe. Legal hurdles exist for such procedures.

The voiceless, defenceless child in the womb falls under the protection of Article 21 of the Constitution, granting them the right to life. Upon reaching viability, particularly after 20 weeks, the state's parens patriae power extends to safeguarding the foetus's wellbeing. It is the State's duty to ensure the safety and liberty of those who can't fend for themselves, and this responsibility naturally encompasses the unborn child.

Under Indian law, provisions have been made for an unborn child that grant it a legal personality through a form of legal fiction. A person in the womb is not considered a child, which is important to note. Only when the child is born alive will it enjoy a legal status.

It is possible to transfer property for the benefit of an unborn child, thanks to the Transfer of Property Act. The process involves establishing a trust.

In laws governing inheritance in India, it is permissible to establish a stake for a yet-to-be-born offspring in a specific asset. Nevertheless, said stake can solely be endowed once the child has been delivered alive.

Under Mitakshara Law, coparcenary property in a HUF includes an interest for an unborn child.

If a woman prisoner sentenced to death happens to be carrying a baby, the act of execution is delayed until the offspring gets a chance to see the world. This law is enshrined in the Code of Criminal Procedure, 1973.

Acknowledged by the U.S. Supreme Court in Roe v. Wade, the state's vested interest in preserving foetal life heightens as the pregnancy develops. While it didn't specify the inception of life, the third trimester marks a significant point in the state's obligation. The Indian Supreme Court follows suit with the viability principle outlined in paragraph 23 of the Suchita Srivastava v. Chandigarh Administration (2009) ruling.

The year 1948 saw the birth of the Universal Declaration of Human Rights, which acknowledged that all human beings have equitable and incontestable rights. A landmark affirmation, the declaration established an elevated status for each person regardless of circumstances such as social standing or lifespan. Featured prominently in the UDHR's opening preambular paragraph is the idea of this valuing of every single individual.

Under the ICCPR, Article 6 ensures that pregnant women should not be executed as a means of protecting innocent unborn children. This article highlights the significance of safeguarding the wellbeing of these foetuses, who have caused no harm themselves.

In 1997, the country acknowledged the significance of international and human rights norms by ratifying settled law (Vishaka v. State of Rajasthan). This law mandates that such norms be interpreted in line with our fundamental rights.

Section 20 in The Hindu Succession Act, 1956:
Without a will, if an individual passes away prior to a child's birth but the child is born healthy and alive afterward, that child still obtains the same inheritance as if they were born before. The inheritance is seen as granted at the moment of the individual's passing.

Section 20 of the Hindu Succession Act governs the rights of the foetus. It gives the born child and the baby in the mother's womb equal status and they both have the same right on the inherent property of the deceased.

Indian Penal Code, 1860:
Depending on the severity and intention behind the crime, the penalties for Sections 312-316 of the Indian Penal Code (IPC) can range from seven years to life imprisonment for fourteen years and fine. These sections specifically target the miscarriage and death of an unborn child, providing a legal framework for addressing such events.

Code of Criminal Procedure, 1973:
Section 416 of CrPC must be considered when a pregnant woman is sentenced to death and the unborn child's fate is at stake. The options are limited to either delaying the execution or reducing the sentence to life imprisonment depending on specific circumstances.

Section 6 in The Limitation Act, 1963:
The 1963 Limitation Act's Section 6 (5) has a unique interpretation of "minor," as it encompasses even an unborn foetus.

Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act):
To suppress the misuse of pre-natal diagnostic techniques and prevent gender-based abortion, the PNDT Act was put into place. Its goal is to safeguard female foetuses' rights by forbidding sex-selective abortions and gender determination.

Maternity Benefits Act, 1961:
During pregnancy, this law offers assistance to expectant mothers in the form of paid leave and other benefits, putting their welfare first and foremost. Additionally, it extends protection to the unborn child, ensuring their rights are respected by proxy.

National Food Security Act, 2013:
To enhance the food security of expectant mothers and children, this Act is designed to optimize their nutritional status. Though unrelated to the rights of unborn children, the Public Distribution System is instrumental in achieving this goal.

Medical Termination of Pregnancy (MTP) Act, 1971:
For an abortion to be allowed, the Medical Termination of Pregnancy Act requires certain conditions that prioritize the mother's welfare. While the law doesn't outline a clear process for terminating a pregnancy, it's evident that the foetus isn't afforded any legal standing or protection by this legislation.

Rights of an Unborn Child in Islam:
Islam recognizes the inherent rights of the unborn child, including the preservation of their life and the prohibition of abortion unless the mother's life is in danger. Their protection from harm and financial welfare are the responsibility of the father. Moreover, it's deemed beneficial to name the unborn child and recognize their inheritance rights.

In Islamic teachings, it's important for future mothers to show their anticipation by praying for their child's virtue and welfare. The notion is that their thoughts and petitions can significantly shape the destiny and personality of their offspring. It's also emphasized that the rights of the unborn baby should be acknowledged and esteemed.

Among both communities and scholars, interpretations of these rights can differ, making it important to seek guidance from religious authorities in order to receive a precise understanding and proper application.

To ensure the health and safety of unborn children, pregnant women receive special accommodations and exemptions under Islamic law. One example is the postponing of criminal punishments, known as "Hudud wa Qisas," until after the birth. Additionally, traditional practices like fasting during Ramadan may be waived for expectant mothers.

Islamic law highlights the importance of the foetus' rights, which are as valid before birth as they are post-birth. These rights encompass aspects related to inheritance and lineage. The foetus, being a legal entity, is entitled to financial entitlements that include a share in assets and inheritance. The child, post-birth, is a rightful heir, eligible for an equal share of inherited wealth alongside other beneficiaries.

"Islamic law employs the use of "Hudud" and "Qisas" to address grave offenses.

Islam has Hudud, which are severe punishments for specific crimes that are considered strict, like stealing or adultery.

"Retaliation" is the definition of Qisas. In circumstances where someone intentionally injures or kills another person, the wounded individual or their loved ones may request comparable retaliation or punishment. By way of illustration, if a person's actions have resulted in harm, their punishment can be to suffer a harm equivalent to that which they caused. Otherwise, the victim's family may opt to forego seeking retaliation and instead elect to either forgive the offender or receive compensation.

Court Judgments:
  1. For the bestowal of a gift upon an unborn individual, the Supreme Court stated in Tagore v. Tagore, (1872) I 1A Suppl. 47, that a developing foetus is considered a living being. It's necessary to recognize, however, that this legal determination only pertains to the act of gift-giving for an unborn child.
  2. The Court in the case of Jabbar v. State AIR 1966 All 590, held that an unborn child who has completed seven months of development in the mother's womb can be considered a person. Essentially, this means that the foetus can be classified as a person if its body has developed to the point of viability.
  3. The Supreme Court upheld their commitment to unborn children by rejecting a woman's request to end her 27-week-old pregnancy. Despite her pleadings, the court maintained their stance. Denying permission for medical termination, the bench of Chief Justice DY Chandrachud ruled that the pregnancy had gone beyond the 24-week limit. "Since there is no immediate threat to the mother and no detectable foetal abnormality, allowing for abortion would breach both sections 3 and 5 of the Medical Termination of Pregnancy (MTP) Act," reported on October 16th, 2023.
  4. The Supreme Court of America, in the Webster v. Reproduction Health Services case of 1989, upheld a Missouri Statute stating that unborn children have a protectable interest in life, health, and well-being. This law also declares that the life of every human being starts at conception.
  5. The Court, in the case of Davis v. Davis (1989) 15 FLR 2097, made the decision that conception marks the start of human life according to the law.

The conflict between parental rights and the legal standing of unborn offspring continues to persist in the realm of tort law. Compensation was previously prohibited by courts when a foetus was harmed. But over the past century, U.S. courts and legislatures have expanded the reasons for seeking damages in instances of prenatal injury and foetal death. Today, many places permit legal action to be taken in such occurrences, except for nonviable foetuses. The issue remains a topic of debate among jurisdictions.

The notion of viability should not be the sole determining factor for granting parents the right to seek legal recourse following a foetus' wrongful death. Judges must evaluate each case on its own terms, and not be bound by the capricious concept of when a foetus becomes viable before allowing such claims. Rather than categorically denying nonviable foetuses their potential right to legal action, cases should be treated uniquely.

When a foetus perishes due to injury before birth, questioning its viability is pointless as children who are born following such an event will have no issue with viability. In circumstances like this, the notion of viability is irrelevant.


Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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