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.

A voiceless, defenceless child in the womb falls under the protection of Article 21 of the Constitution, which grants him the right to life. After viability is reached, especially after 20 weeks, the power of the parens patriae state extends to protect the well-being of the foetus. 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.

Property can be transferred according to the Transfer of Property Act, so as to benefit an unborn child. This is done through a trust. Under the Indian Succession Act, we can create an interest in the name of an unborn child in a property. However, the interest in the property can only arise after the child is born alive. In a HUF under the Mitakshara Act, the unborn child will have an interest in the joint property. Criminal Procedure Code, 1973 states that if a female inmate sentenced to death is found to be pregnant, the execution is postponed till the child has a chance to be born.

The US Supreme Court recognized in Roe v. Wade that the state's inherent interest in preserving foetal life increases as the pregnancy progresses. Although it did not specify the beginning of life, the third trimester represents a significant point in the state's obligation. The Supreme Court of India follows the principle of viability as outlined in para 23 of Suchita Srivastava v. Chandigarh Administration (2009).

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 endorsement, the declaration established an elevated status for every person regardless of circumstances such as social status or life expectancy. In the opening paragraph of the preamble to the UDHR, the idea of ​​this valuing of each individual is prominent.

According to the ICCPR, Article 6 ensures that pregnant women should not be executed as a means of protecting innocent unborn children.

Section 20 in The Hindu Succession Act, 1956:

Without a will, if an individual dies before the birth of a child, but the child is born healthy and alive afterwards, that child will still inherit the same as if he had been born earlier. Inheritance is deemed to have been granted at the time of the individual's death.

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

Indian Penal Code, 1860:

Depending on the seriousness and intent of the crime, the sentences under Sections 312-316 of the Indian Penal Code (IPC) can range from seven years to fourteen years' imprisonment and fine. These sections specifically focus on abortion and death of the unborn child and provide a legal framework for dealing with such events.

Criminal Procedure Code, 1973:

Section 416 of the Criminal Procedure Code is to be considered when a pregnant woman is sentenced to death and the fate of the unborn child is at risk. The options are limited to either a stay of execution or a reduction of the sentence to life depending on the particular 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 is to control the misuse of pre-natal diagnostic techniques that lead to the sex-based abortion. It aims to safeguard the rights of unborn female children by outlawing sex-selective abortions and pre-birth sex determination.

Maternity Benefits Act, 1961:

This Act offers assistance to expectant mothers during pregnancy in the form of paid leave and other benefits, keeping their welfare at the forefront. In addition, it extends protection to the unborn child and ensures that its rights are respected through a power of attorney.

National Food Security Act, 2013:

To enhance the food security of expectant mothers and children, National Food Security Act, 2013 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 natural rights of the unborn child, including preserving its life and prohibiting abortion unless the mother's life is in danger. Their protection from harm and financial well-being is the father's responsibility. In addition, it is considered beneficial to name the unborn child and recognize his inheritance rights. In Islamic teachings, it is important for expectant mothers to show their anticipation by praying for the virtues and well-being of their child.

It is believed that their thoughts and pleas can significantly shape the fate and personality of their offspring. It is also emphasized that the rights of the unborn child should be recognized and respected. Interpretations of these rights can vary between communities and scholars, so it is important to seek the advice of religious authorities to gain an accurate understanding and proper application.

To ensure the health and safety of unborn children, pregnant women are given special accommodations and exemptions under Islamic law. One example is the deferral of criminal punishments, known as "Hudud wa Qisas", until after birth.

In addition, expectant mothers may be exempted from traditional practices such as fasting during Ramadan. Islamic law emphasizes the importance of the rights of the foetus, which are valid both before and after birth. These rights include aspects related to inheritance and lineage. A foetus as a legal entity is entitled to financial claims that include a share of property and inheritance.

The child, post-birth, is a rightful heir, eligible for an equal share of inherited wealth alongside other beneficiaries.

Abortion is considered completely haram (prohibited or sinful) by Islamic scholars from the past and present. However, some consider it permissible during the stage of nutfah (the first 40 days) and impermissible after that period. There are those who allow termination in the stages of nutfah and alagah (the first 80 days) but prohibit it later on. Yet another group permits abortion throughout the first four months under specific conditions.

In 1998 and 2004, The Grand Sheikh of Al-Azhar issued fatwas allowing unmarried women who have been raped access to abortion even after 120 days.

In Jordan, a religious decree permits the termination of pregnancy before 120 days for documented severe foetal anomalies without the consent of both parents. Even after 120 days, termination for a foetal anomaly can be allowed if three specialists document such severe anomalies and both parents give their consent. This religious edict is approved in Jordan and TOP is performed due to serious foetal malformations regardless of the father's decision.

Court Judgments:

• For making a gift to an unborn individual, the Supreme Court in Tagore v. Tagore, (1872) I 1A Suppl. 47 held that a developing foetus is considered a living being. However, it should be noted that this legal designation only applies to the act of donating to an unborn child.
• It was held by the court in Jabbar v. State AIR 1966 All 590 that an unborn child who has completed seven months of development in the mother's womb can be regarded as a person. Essentially, this means that a foetus can be classified as a person if its body has developed to the point of viability.
• The Supreme Court upheld their commitment to unborn children by rejecting a woman's request to terminate her 27-week pregnancy. Despite her pleas, the court stuck to its position. The bench headed by Chief Justice DY Chandrachud of Supreme Court denied permission for medical termination and held that the pregnancy exceeded the 24-week limit. "Since there is no imminent danger to the mother and no detectable foetal abnormality, allowing abortion would violate both sections 3 and 5 of the Medical Termination of Pregnancy (MTP) Act," economictimes.inditimes.com reported on October 16, 2023.
• In the 1989 case of Webster v. Reproduction Health Services, the US Supreme Court upheld a Missouri statute stating that unborn children have a protected interest in life, health, and welfare. This law also declares that the life of every person begins at conception.
• The court in Davis v. Davis (1989) 15 FLR 2097 held that conception marks the beginning of human life in law.

Conclusion:
The conflict between parental rights and the legal status of unborn children continues to persist in the area of ​​tort law. Damages were previously barred by the courts when a foetus was harmed. Over the course of the last century, however, American courts and legislatures have expanded the grounds for seeking damages in prenatal injury and foetal death cases.

Today, many jurisdictions allow legal action in such cases, except for non-viable foetuses. This issue remains a matter of debate between jurisdictions. The concept of viability should not be the sole determining factor for granting the right of parents to seek legal redress for the wrongful death of a foetus.

Judges must consider each case on its own terms and not be bound by a capricious concept of when a foetus becomes viable before allowing such claims. Rather than categorically denying non-viable foetuses their potential right to legal action, cases should be handled uniquely. When a foetus dies as a result of an injury before birth, questioning its viability is pointless, as children born after such an event will have no problem with viability.

References:

1. https://thewire.in/law/in-considering-bail-for-a-pregnant-woman-the-personhood-of-her-fetus-has-to-be-a-factor
2. https://www.toppr.com/guides/legal-aptitude/jurisprudence/status-of-unborn-minor-lunatic-drunk-and-dead-person/
3. https://vanishinggirls.in/rights-of-the-unborn-child/
4. https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1189&context=sulr
5. https://economictimes.indiatimes.com/news/india/supreme-court-upholds-rights-of-unborn-child/
6. https://journalppw.com/index.php/jpsp/article/view/10842
7. https://www.foxmandal.in/property-rights-of-an-unborn-in-india/
8. https://thefactfactor.com/tag/tagore-v-tagore/
9. Al-Matary, A., Ali, J. Controversies and considerations regarding the termination of pregnancy for Foetal Anomalies in Islam. BMC Med Ethics 15, 10 (2014). https://doi.org/10.1186/1472-6939-15-10

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