In our society, having a child is considered the blessing of God, and even in our holy scriptures, it is believed that God enters the house in the form of children. The pregnancy is a beautiful and altogether different experience for both the parents as they eagerly wait for 9 months for the arrival of a newborn in the family. As per the medical experts, in the 2nd or 3rd week of pregnancy, a child’s heart starts beating, and a human being starts to develop.
However, it is also a bitter truth that some people become so inhumane that they take the life of the unborn child in the mother’s womb. Though the legal provisions in our country permit abortion, it doesn’t mean that our constitution and other legal provision don’t provide any legal rights to the unborn child. In this article, we will discuss the rights available to an unborn child in the country. Further, we will also the significance of Article 21 for a fetus.
Meaning of Rights of Unborn Child
The definition of child rights has been described in multiple places, but for the unborn child, there is the paucity of literature. The Black’s Law Dictionary has defined the “rights of the unborn child” in the following manner –
“The rights of an unborn child are recognized in various different legal contexts; e.g., in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section 187), and the law of property considers the unborn child in being for all purposes which are to its benefits, such as taking by will or descent”
From the above definition, it is quite clear that the rights of an infant are defined in various statutory provisions. The rights of an unborn child include proper care, and nutrition from the parents as soon it is fertilized, the right of property, and even the right to maintenance.
Origin of Right of Unborn Child in India
From the age, the children are treated as the most precious assets for the future. Our earlier laws were quite a strict in relation to abortion. However, during the 19th century, a significant development took place in technology, and new machines came into existence. Though these machines were introduced with a bona-fide intention of medical advancement in the field of pregnancy, it was used to determine the sex of the child. The inherent desire for male children led to a wide-scale sex-selective abortion in the country.
Doctors being life saviours are assigned the noble duty to practice their profession with utmost honesty and integrity. However, with the passage of time, corruption peeps in the profession making it corrupt with numerous illegal practices. To curb this growing menace, some strict legislative measures were adopted, such as the enactment of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 which not only criminalized the sex-selective abortion but also regulated the conduct of doctors.
At the global level, the roots of the rights of unborn child can be traced back to the mid of 19th century. In the “1924 Geneva Declaration of the Rights of the Child,” it was unanimously decided to protect the rights of unborn children also in the matter of property, health, etc. After the 2nd world war, the Geneva Convention was altered, and 2 new points were incorporated. Firstly, the rights of children shall be protected, irrespective of caste, colour, sex, etc. Secondly, an unborn child should be given proper care and nutrition in order to ensure complete physical and mental development. Further, the first draft of the international covenant (1947) provides that human rights shall be protected from the moment of “conception”.
At the 4th Geneva conference, it was made amply clear that protecting a child before birth is fundamental humanitarian duty. The universal declaration of 1948 offers similar kinds of protection to an unborn child before and after birth. Moreover, it was proposed to abolish the death penalty for pregnant women so as to protect the right to life of an unborn child. Thus, from the above discussion, it can be inferred that the rights of the unborn child are considered equivalent to a born child in India and at the global level.
Abortion vs Right of Unborn Child in India
As discussed above, India was not familiar with the concept of abortion till 1971, and it was considered an offense under Section 312 of the Indian Penal Code (IPC). It was allowed only in an exceptional situation to protect the life of the mother. However, in 1971, the Medical Termination of Pregnancy Act was introduced which allowed abortion up to 20 weeks of pregnancy. This period is further increased to 24 weeks after the recent 2020 amendment in the former Act. However, it is still a matter of debate whether the abortion shall be construed as the murder of an unborn child. Though it can be fairly understood that women have complete autonomy over their bodies, and they shouldn’t be subject to forced pregnancy, the rights of unborn child also need to be given due consideration.
Here, things become interesting by interpreting Article 21 of the constitution. It is a guardian of rights of life and liberty with a very wide scope. Till now, this right to life is only extended to a person who is existing physically. It is unclear whether an unborn child is also covered under the scope of Article 21 of the constitution. It is a well-accepted fact that it is just a matter of time before a fetus will land on the earth like a normal human being performing all human activities.
In the case of Suchita Srivastava and V. Krishnan, the Hon’ble Supreme Court of India has held that the right of the mother shall override the right of the foetus. A mother has a fundamental right over her body, and if she doesn’t want to have a baby, we cannot force her to have one. Thus, this case summarizes the current legal jurisprudence wherein the rights of an infant cannot be equated to the fundamental rights of a mother.
Rights of Unborn Child in India
Though an unborn child is not covered under Article 21, it doesn’t mean that he/she doesn’t have any other legal rights in the country. There are various legal rights conferred by different statutes to an unborn child. Some of the major rights of unborn child are discussed below-
Rights of Unborn Child under Limitation Act, 1963
The limitation Act is a comprehensive one dealing with the legal timelines of filing applications, petitions, etc. Section 6 of the Act describes a child in the womb as a minor. This section deals with the right to institute a decree or suit for the execution of the decree. In this section, a minor, insane, or idiot person can make an application after their disability has ceased or they have been allowed as per the third column of the schedule.
The explanation of Section 6 describes that for the purpose of this section, the definition of a minor will include a child in the womb. Thus, this section entrusts an unborn child with a right to institute a case for execution of the decree.
Rights of Unborn Child under Indian Succession Act, 1925
In the Indian succession Act, section 2(e) deals with the definition of a minor. It states that a minor is a person who has not attained the age of 18 years or the persons who are subject to the Indian Majority Act, 1875. From a bare perusal of this definition, it can be safely assumed that an infant is also included in the definition of minor for the purpose of this Act.
Further, as per Section 114 of the Act, a prior security interest can be made in favour of an unborn child for the corporeal or incorporeal property. The term corporeal property means a property that has a tangible existence that can be physically touched, whereas an incorporeal property is neither visible nor tangible. Example of incorporeal property includes copyright, easement, etc. However, that security interest cannot be treated as a vested right until the birth of the child.
Rights of Unborn Child under Indian Penal Code, 1881
The rights of an unborn child in India are also shielded with penal protection. A list of sections ranging from 312 to 318 deals with the right to life, protection against injury, etc. of the unborn child. The offenses are elaborately discussed hereinbelow-
- Causing Miscarriage
Though this term is not defined anywhere in the code, it means the deliberate or mala fide termination of a woman’s pregnancy before the birth of the child. The punishment of this offense depends upon the development stage of the child. If the mother has recently got pregnant, a light punishment is awarded. However, if the pregnancy is in the advanced stage, this offense attracts a very stringent punishment, including imprisonment for life. Section 313 makes this offense non-bailable, cognizable and non-compoundable.
However, it is important to note that if the miscarriage is done in good faith, it shall not be considered an offense.
- Injury to Unborn Child
Section 315 and 316 deal with the offenses which involve inflicting an injury on the unborn child. Section 315 is aimed at feticide which involves the intention of killing the child in the mother’s womb itself. Section 316 provides for a severe offense that is done with an intention or knowledge to commit an offense of culpable homicide to cause the death of the infant. This offense is punishable with strict imprisonment of up to 10 years. In addition, if the mother dies because of the impugned Act, the accused shall be charged with culpable homicide
- Concealment of Birth of a Child
Many a time, we hear stories that the body of a newborn baby is attacked by street dogs or other wild animals. This depicts the harsh and inhumane reality of our society wherein some parents abandon or even kill their children after their birth and try to dispose of their dead bodies. It constitutes a serious penal offense that is non-bailable and compoundable in nature. However, for the application of Section 318, it is essential that the child must be dead after the act of secretly disposing of the body.
Rights of Unborn Child under Hindu Succession Act, 1956
As per Section 20 of the Hindu Succession Act, 1956, an unborn child is vested with some privileges even in the womb of the mother. For the purpose of inheritance of intestate of a dead person, there is no difference between an unborn child and a born child. Both of them are legally qualified to inherit the property from the date of death of the intestate. An unborn child can transfer such rights only after taking birth.
Rights of Unborn Child under Transfer of Property Act, 1882
Section 13 of the Transfer of Property Act provides that a property can be transferred in the name of an infant or unborn child by creating a prior interest therein. Though the child may not have the physical presence, he/she is legally competent to whom the property can be transferred. However, it is important to note that a child can exercise other rights on the property only after taking birth.
Rights of Unborn Child under Code of Criminal Procedure, 1973
The right to life of an unborn child can be deduced from the provisions of Section 416 of the Code of Criminal Procedure (CrPC) which states that pregnant women cannot be executed or a sentence of the death penalty cannot be executed against a woman who is pregnant. It also provides that the high court may also commute the death penalty to life imprisonment. The core objective of this section is to protect the life of an unborn child.
Rights of Unborn Child to claim compensation
In the case of Manikuttan Vs M.N. Baby, 2009 ACJ 1497, the Kerela High court held that, if an accident causes the death of a pregnant woman carrying a 4-month-old fetus, it shall be treated as taking away the life of 2 people simultaneously. The husband is entitled to compensation not only for the death of his wife but also for the unborn child, who was yet to come into this world.
Rights of Unborn Child under Muslim Law
With respect to property and inheritance, no such right has been granted to an unborn child in Muslim Law. The gift made to an unborn child is considered void with no legal validity. However, there is an exception, which provides legitimacy to a gift in the case of waqf.
As rightly pointed out by Mother Teresa, children are the biggest blessings of the holy God. In India, an unborn child is vested with numerous rights under different statutes, such as the limitation Act, CrPC, IPC, Transfer of Property Act, Hindu Succession Act, etc. Though a child is not covered under the scope of Article 21 of the constitution, it is the humanitarian duty of the parents to give a healthy and blissful life to the children.
By setting up health centres at the rural level, the government is working in a direction to spread awareness about the health and other particulars about the unborn child in India.