I have noticed that everyone who is for abortion has already been born
The controversy relating to the legal right of an unborn fetus has been the subject matter of
debates at both the National and International levels. Globally, different
Constitutions recognize the sanctity and importance of life; but they have
completely failed to provide adequate protection to the life of a fetus. This
research paper aims to study the legal personality of an unborn child giving
special emphasis on the Indian constitution and legislations. This paper will
also try to understand the stand of various international law
governed by treaty conventions and other jurisdictions like the USA, European countries, and
the impact of such on the Indian laws.
The debate relating, giving legal status to a fetus, equivalent that to a living human being, is
being highlighted by several activists and stalwarts of the international community for quite
long. The right to life is the most basic human right and the maximal of the
human leaving population enjoys it. The Indian constitution also pledged to
safeguard its citizens by
entrusting them with the right to life, under Article 21 of the Indian Constitution. Though the
right to life is a recognized right, its fetal rights, advocated by people of the society,
Ronal Regan’s interview
extensively, as it is considered shredded protection against illegal abortions practices and
similar adversarial, entities.
In general practice, a fetus is treated as a part of a woman's womb, and so the right of a fetus
gets overshadowed by the already inclined rights of a woman. Such status
indulges and encourages lethal abortion practice, especially in socially
backward countries and communities.
There was a time when practicing illegal abortions, was a recognized practice,
extensively by almost everyone. It was because of the lack of sex education or the prevalent,
patriarchal society and its members, who considered a girl child as a burden. On the shadier
side, such practice used to take place, against the will of the mother, only to
keep up with
social pressure. This only highlights, exploitation of the power, granted to women, moulded
to their own service, as a way of committing a social evil, ignoring the
innocent life of an
unborn, who never got the opportunity to witness to feel, the reality of life.
Indian population being full of illiterate, socially backward mentality people were once flag
bearers of such underdeveloped social abortion practices. It was only in the year 1971, for the
first-time legislation, dealing with abortion, was enacted in the Indian
Judicial system, to
curtail, and regularize abortion in the country. Such an act by the government did reduce the
number of abortion rates in the country drastically, still, unprotective sexual
teenagers and illiterates adds on the number of unborn, murdered every year, in the name of
This paper tries to identify and justify the reason an unborn deserve the protection of the law.
This paper will also discuss in detail; how medical science treats a fetus; as
wonderfully expressed by infamous, American activist and author Alveda C King
Life is a civil right, abortion is a civil wrong.2
Stages of fetus development:
Right to life, needless to say, recognize, a natural person or legal person, so to entrust a fetus
with the right to life, it becomes obligatory, to prove fetus as a natural
person or a legal person, and to prove such, it becomes key to study, the
stages of fetus development, to
identify the time-frame when a sperm converts itself into a fully grown baby, inside mother's
The development of a baby, inside a mother's womb, happens in three stages,
trimesters. Each trimester lasts for about 12 weeks, and traditionally a pregnancy is a 9-month
process. It's only after the 8th week of pregnancy; the embryo turns into a fetus, and in the
9th week of pregnancy, the arms, hands, fingers, feet, and toes, start developing; It's the 13th
week when the heartbeat of the fetus becomes audible, which indicates that it's the 13th week
when the heart of the baby, develops.
Heartbeat is one of the most essential, for declaring someone dead, so is it for birth. we can
state that the heart is the life-and-death of a person, so is the brain, as it plays a substantial
role in determining the existence and death.
In conclusion, it's in the first month of pregnancy when the baby starts taking the shape of a
living person, partially, with the inception of the brain, which is marked, as the foundation,
giving the unborn with life, but it's only in and after the 13th week of
pregnancy when the
fetus, wholly, with the patter of the heartbeat, grace to become a person, suitable to be vested
with rights and protected by the law.
3. India's standpoint:
Fetal Rights in USA
- Indian Constitution
In India, different legislatures, and the constitution, itself shows the
intention of treating an unborn as a natural person by protecting it by the
laws. The Indian constitution through its contents, visualize a clear
distinction between citizens and persons; article 19(1) of the Indian
Constitution use all citizen to specify the applicability of the article wherein article 21 of the
Indian constitution, interchanges 'no person', in the same context. Part 2 of
Constitution deliberates about citizens of the country and its eligibility, but no such definition
has been communicated regarding 'person' in any context, implies, any tangible being other
than a citizen will be considered as 'person' for the definition of the act. In practice,
defines any foreign citizen, or any company, or an unborn, etc. It is a
prevailing practice to
consider a company within the ambits of Article 14 and Article 21 of the Indian Constitution,
due to its nature of existence, i.e. R.C Cooper v. Union of India 3, or infamously known as the
bank nationalization case, the apex court provided constitutional protection to
a company, under Article 14c.
Advocating the same interpretation of the apex court, concluding that the
fundamental right of an unborn is protected, as it is not a person by birth, but
a person made by law, making it
eligible for protection of its fundamental rights, mentioned under article 14, and Article 21, of
the Indian Constitution.
- Other Indian Statutory laws
Not only the Indian constitution but several statutory laws in India gives legal protection to
an unborn. The Indian Penal Code,1860, under sections 312, 313, 315, and 316, give rise to
criminal liability for the person, causing death to an unborn.
Section 312 of The Indian Penal code, 1860, reads, Causing miscarriage:
Whoever voluntarily causes a woman with child
to miscarry, shall, if such miscarriage be 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 be quick with child,
shall be punished with imprisonment of either description for a term which may
seven years, and shall also be liable to fine.
A woman who causes herself to
miscarry, is within the meaning of this section.4
This particular section is the paramount legislature which displays the intention for treating
an unborn, at par with any living human body by punishing the intentional life-taker of an
unborn with imprisonment up to 3 years, or with fine, but Such legislation is
restriction, and in an exceptional case where the miscarriage is caused, for the purpose of
saving the life of the mother, it will not give rise to any criminal liability.
This section also
provides for a separate provision and punishment for causing miscarriage to ' woman quick
with child.' It is a stage of pregnancy when the movement of the fetus has been felt, i.e. 4th
month of pregnancy, after the stipulated time or occurrence, an unborn start enjoying,
enhanced protection of the law against unjustified miscarriage. The maximum
punishment being, 7 years imprisonment, and shall also be liable for fine.
explanatory note in this
section expressly includes a woman who causes herself to miscarry, widens the scope of this
legislature, and shifts the focal point of this particular section to the unborn child. Adjacent,
similar sections simply amplify ambits of section 312, especially Section 316,
the act of causing the death of a quick unborn, as an act of culpable homicide, prescribing the
maximum punishment of 10 years of imprisonment and shall also be liable for fine.
The implication of the deliberated sections in the Indian Penal code has
rights of an unborn, such legislation also shows the intention of the Indian legal framework
for giving a distinct and separate identity to them.
Section 20 of the Hindu Succession act, 1956, reads: Right of child in womb.―A child who
was in the womb at the time of the death of an interstate 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.5
The application and interpretation, of the said section, was seen in the case of
Ganpati Bhat v. Prabhakar Ganpati Bhat 6; the Supreme court believed: There is no ban on
transfer of interest in favour of an unborn person. Section 20 permits an
created for an unborn person who acquires interest upon his birth. Such pronouncement and
piece of legislation, increase the scope of rights, granted to an unborn.
Section 20 of Transfer of Property act 1882, reads: 20. When unborn person acquires vested
interest on transfer for his benefit.—Where, on a transfer of property, an
interest therein is created for the benefit of a person not then living, he
acquires upon his birth, unless a
contrary intention appears from the terms of the transfer, a vested interest, although he may
not be entitled to the enjoyment thereof immediately on his birth.7 The said
piece of legislation shares the same kind of traits like the one in the
succession act, so does other property and inheritance laws in India.
Enactment of the abovementioned civil and criminal legislation and prevailing
precedents shows the stand of the Indian legal system on the issue regarding giving equal
rights to unborn; it can be said to have a positive approach. The constitution of the country, if
not impliedly, but expressly shown its support for the cause. Constitutional
safeguards, granted to a mother being a citizen of the country stands as a
limitation against the rights given to the unborn.
- Fetus fundamental rights v. Mother’s fundament rights
Part 2 of the Indian Constitution 8 specifies people who will be deemed to be the citizen of the
country. According to part, a child can only be treated as a citizen after birth. A mother if she
fulfils the conditions mentioned under part 2 of the constitution, becomes a natural citizen of
the country and enjoys extra safeguards given by the constitution and the courts
country. Such powers enjoyed are not absolute and are subject to restriction.
Now the question arises that who will get the benefit of interest, in case of a clash of between,
a fetus right to life and, a mother’s right to life? The solution for such has
been addressed in the Medical Termination of pregnancy act,1971.
Section 3 of the said act talks about the law related to legal medical termination of pregnancy
and it lays two conditions when such termination can take place: number one condition state
that the pregnancy can be terminated, when such continuance of a pregnancy would involve a
risk to the life of the pregnant women, physically and mentally; number two
condition state that the pregnancy can be terminated when the medical
practitioner believes there to be a substantial risk, for the child to suffer
from a physical and mental abnormality if such
pregnancy is continued.
In the case of Suchita Srivastava v. Chandigarh Admn 9, the supreme
court of the country accepted the existence of ‘compelling state interest’ in protecting the life
of a prospective child. On a contradictory statement, the court was also of the opinion that if
the abortion is taking place, for saving the life of the mother, then such can be allowed by the
court, provided that such risk of the mother’s life has been certified by a
This shows that when there exists, any clash of interest between, an fetus right
to life and a mother’s right to life, the latter one will prevail. In the same case, the court also
held that the legislature intends to provide a qualified right of abortion, and termination of
pregnancy has never been recognized as a normal resource for expecting mothers;
Indian courts support towards treating an unborn as a legal entity becomes
prominent, by such comments made by it.
The United States Supreme court does not recognize a fetus as a 'person' within
the meaning of the fourteenth amendment, but the protection of fetal rights has
grown significantly outside constitutional law. The constitutional law of the
country state that a child is considered to acquire legal standing only after
birth, and consequently, has the right as a separate person; such is known as
the born alive
in America, including luminaries,
criticized the practice of abortion in the country, and blamed the lenient laws governing fetus
rights, as a helping hand in misusing abortion practice. In the United States of
abortion has been defended by the courts in the name of privacy and of equity, connected to
the 14th amendment, i.e., to decide for themselves ethical and personal issues
marriage and procreation,10 which includes the right to decide whether to carry a pregnancy
Out of all the important judicial precedents, Roe v. Wade11 is considered as the
founding- stone from where the discussion shifted from abortion to the issue of
fetal rights. In the said case, the court limited woman's right to terminate its
pregnancy and said that it is the legitimate interest of the state to save
potential human life;
interpreting a viable fetus as a legal person, and
giving them legal safeguards.
Few years after the said judgment, few courts extended the doctrine of treating
a viable fetus as a legal person and stated that a child has rights even before
viability. Such doctrine is known as contingent legal personhood;
In the case of Jefferson v. Griffin
12 Spalding county hospital Authority, the court stated, that a fetus
can medically treat a fetus without the will of the mother, as it is the duty of
the state, to
protect the life of any ‘potential human life.’ Moreover, very much like the Indian penal code,
the American law makes a third party liable, for wrongful death action, committed against a
fetus; application of such principle can be seen in the case of Commonwealth v.
13, and the person liable was charged with vehicular homicide.
The laws protecting an unborn are similar to that of the laws in India. Moreover, the courts in
America are more inclined and friendly to mothers, it considers a fetus to be an integral part
of the women's body, and give them the right to decide, whether to continue with
the pregnancy or not.
Fetal rights in Germany
Abortion and fetal rights are not key issues in Germany, still the German
Grundgesetz,’ technically makes abortion, illegal. The German Supreme court in the year of
1975, came up with guidelines concerning the unborn child's protection, and it made it clear,
that the life of the unborn should be given equal legal protection as that of a living being.
Paragraph 218 of the German penal code14 also makes abortion, illegal, and a person causing
an abortion will be liable to face three years of imprisonment or fine. Such
laws are not
absolute and restrictions are attached to it.
Guidelines clearly state that an action would not be
considered to be abortion if such has been taken before the fertilized egg's attachment to the
uterus, i.e. first trimester of pregnancy, but such abortions also take place
under the supervision of the Government, and it mandates every woman to go for
three days counselling session, this makes it a unique way of reducing the
abortion rates, through counselling; late abortions are only allowed if such
pregnancy starts affecting the physical and mental health of the mother, as well
as the child.
Fetal rights in the United Kingdome
It must be noted that the abortion laws in India, have been adopted from those laws present in
the UK, and this makes it identical. The United Kingdom, is a state which
follows the common law system, and the most prominent feature of such a system
is that it gives
importance to judge-made law or local court decisions, such precedents become grounds for
judging future similar cases.
The courts don't treat a fetus as a legal person until birth, even though
abortion and termination of pregnancy, is termed as illegal; the offense against
person Act, 1861 (section 58 and 59)15, and the Infant Life Preservation Act,
192916, makes killing a child who is capable of being born alive.
In contradiction and to make abortion legalize, the
court in the case of R v. Bourne17, laid down the grounds for legal abortions; the abortion act,
1967, was also laid to generalize and clarify the legal position of unlawful abortions.
International, Instruments, courts, and fetal rights
In a recent judgment given by the European Court of Human Rights, it refused to give a fetus,
status of a human being and clarified that involuntary abortion doesn't
constitute manslaughter. It also stated that it is not possible to determine
whether a fetus is a legal
person or not, in the context of the European Convention On Human Rights (Article 2)18; the
same convention was also interpreted by the Australian constitutional court, and it refused to
include unborn within the definition of 'everyone;'
Article 1 of the Universal Declaration on Human Rights, reads All human beings
free and equal in dignity and rights.
19 This shows the intention of the declaration to grant the
status of dignity and equal rights, only to people who are born;
Some constitutional laws even give separate legal status to a fetus, life Article 40(3), of the
Irish constitution. It says the state acknowledges the right to life of the unborn and with
regard to the equal right to life of the mother, guaranteed in its laws to respect and as far as
practicable by its laws to defend and vindicate that right;20
The U.N. Convention on the Rights of Child 1989, is also not clear about its interpretation
and defining ‘child’ in it, and made its interpretation open for the member countries of this
convention and their local laws.
Going through the above-mentioned, local constitutional laws, local penal laws, international
instrumental declarations, and presidents; it has left us in a position, to properly analyse, and
understand about the merits of the debate that whether an unborn/fetus, has a legal right even
before their birth, in their mother's womb.
The international instruments and declarations have been very diplomatic in addressing such
issues and are not clear on their approach, leaving the decision on the local laws.
In India, the judicial pronouncements and laws are implicitly in favour of giving unborn’s,
separate legal statuses; the same is the situation in the countries like the
Ireland, etc; and some countries like the UK have declined to give separate legal rights to a
fetus, but indirectly protect their life by restricting, abortion practice to a certain extent.
It has also be noted that in case of clash of interest, between the mother and the unborn, it's
always the mother who is given the preference, as the mother, being a born
citizen of the
country and some local laws also consider a fetus to be an integral part of the woman's body,
and practice is prevailing in almost all the countries.
It should be noted that fetus rights have
been an important question, as people started misusing rights of abortion granted to them, but
it cannot be ignored that abortion is a very necessary medical procedure, and
banning it won't be possible; changes in abortion laws were made in almost all countries, to
regularize such abortion practices and stop performing the avoidable abortions,
which indirectly helped in providing ‘right to life’, to an unborn.
- The Indian Penal code, 1860
- The Indian Construction
- The Hindu Succession act, 1956
- Transfer of Property act 1882
- Medical Termination of pregnancy act,1971
- Fourteenth Amendment U.S. Constitution
- Roe v. Wade
- German Constitution: Grundgesetz
- Offense against person Act, 1861
- Infant Life Preservation Act, 1929
- European Convention on Human Rights, 1953
- Universal Declaration on Human Rights, 1948
- Indian Kanoon
Written By: Subhrodeep Saha
- Dr. Alveda King’s, National Day of Mourning speech, 2019
- R.C. Cooper v. Union of India 1970 AIR 564
- Section 312 of The Indian Penal code, 1860
- Section 20 of the Hindu Succession act, 1956
- Appeal (civil) 4385 of 2001
- Section 20 of Transfer of Property act 1882
- Indian Constitution
- Civil Appeal No. 5845 OF 2009
- Fourteenth Amendment U.S. Constitution, July 8, 1868
- 410 U.S.113
- 247 Ga. 86 (1981
- 446 Pa. Superior Ct. 66 (1995)
- Paragraph 218 of the German penal code
- offense against person Act, 1861
- Infant Life Preservation Act, 1929
- (1938) 3 AII ER 615
- European Convention on Human Rights, 1953
- Universal Declaration on Human Rights, 1948
- Article 40(3), of the Irish constitution
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