Abstract
Article 21 of the Indian Constitution affirms the fundamental right to life and personal liberty for every individual, including unborn infants. Nonetheless, the scope of this right concerning unborn children has been a topic of considerable debate. This research article examines the legal status of the rights of unborn children as outlined in Article 21 of the Indian Constitution. It reviews various judicial decisions from the Indian courts on this matter and investigates the implications for the rights of unborn children. While the Indian legislature has clearly defined the rights of pregnant women, the rights of unborn children remain contentious. Certain laws, such as the Medical Termination of Pregnancy Act of 1971 (amended in 2021) and the Maternity Benefits Act of 1961, have been enacted to safeguard the rights of pregnant women; however, there is a lack of specific legislation addressing the rights of the unborn. Furthermore, the Universal Declaration of Human Rights of 1948 acknowledges the right to life and liberty as fundamental rights, though it does not explicitly refer to unborn children. It also states that “all are equal before the law,” a principle that could be interpreted as offering protection against discrimination based on the status of being unborn. Recognizing the significance of safeguarding the rights of unborn children is crucial, as they represent the future of society.
Keyword: Unborn child, foetus, Constitution, termination, pregnancy.
Introduction
Article 21 of the Indian Constitution stipulates that no individual shall be deprived of their life or personal liberty except in accordance with a procedure established by law. This provision extends to include unborn children within its legal framework. The Indian judiciary has adopted a broad interpretation of this right, encompassing various critical aspects of human existence, such as dignity, privacy, and health. This interpretation has sparked considerable debate and differing opinions regarding the rights of unborn children under Article 21, resulting in a range of judgments and perspectives. The significance of this issue was notably highlighted in the case of Suchita Srivastava v. Chandigarh, where the Supreme Court of India, in its 2009 ruling, affirmed that unborn children possess the same rights to life and personal liberty as outlined in Article 21. The court emphasized the State’s obligation to safeguard the health and welfare of all its citizens, including both the expectant mother and her developing child.
Legal position in India:
The historical legal perspective in India regarding the rights of an unborn child can be traced to the landmark case of Kharak Singh v. State of U.P[1], the Supreme Court of India emphasized that the concept of the right to life as per Article 21 encompasses the right to live with human dignity. This encompasses the right to health. Following this, in the matter concerning Unnikrishnan v. State of U.P [2]The court established that the right to life encompasses access to medical care for both the mother and the unborn child.
Regarding the legal matter involving Suchita Srivastava v. Chandigarh Administration[3], the Supreme Court recognized the rights of an unborn child, affirming that Article 21 of the Indian Constitution safeguards the right to life and personal liberty of a child. The court asserted that the State has a responsibility to protect the survival and welfare of both the unborn child and the mother. Furthermore, it was established that the rights of the unborn child must be balanced with the rights of the mother, thereby acknowledging the “right of the unborn child.” This evolution in legal recognition and protection has occurred gradually, particularly in light of advancements in medical science and shifting societal attitudes. Historically, unborn children were not regarded as legal persons with rights; however, many nations have since enacted laws that afford various protections to the unborn foetus.
In the case of X v. Union of India[4], the bench led by Chief Justice D.Y. Chandrachud denied a request for the termination of pregnancy, noting that the statutory limit of 24 weeks had been surpassed and that the Medical Board’s evaluation indicated no immediate threat to the petitioner’s life. The Court also expressed hesitance to mandate the cessation of the foetal heartbeat, citing ethical concerns.
In the case of Smt. Meena v. State of Maharashtra[5], a woman claimed inheritance rights for her unborn child. The court recognized the unborn child’s rights and ruled that the unborn child has a right to inheritance and can be considered a “person” for inheritance laws.
Protection of the unborn children from abortion – MTP Act
The Medical Termination of Pregnancy Act was enacted by Parliament in August 1971, following the recommendations of the Shantilal Shah Committee. This legislation outlines the conditions under which a pregnancy may be terminated, the qualifications of those authorized to perform the procedure, the designated locations for such procedures, and the consequences of non-compliance. A key provision of the MTP Act stipulates that termination of pregnancy is not permitted after 20 weeks, except in cases where the mother’s life is at risk, such as in instances of a threatened abortion. Consequently, if a mother learns that her foetus has severe anomalies with minimal or no likelihood of survival at birth, she is compelled to carry the pregnancy to term if it exceeds the 20-week limit. In 2021, the Medical Termination of Pregnancy Act of 1972 was amended to extend the permissible period for abortion from 20 weeks to 24 weeks. Under the original MTP Act, a pregnancy could be terminated based on the assessment of a single doctor up to 20 weeks; however, for pregnancies between 20 and 24 weeks, the revised legislation mandates the consultation of two medical professionals.
RIGHTS OF AN UNBORN CHILD
The rights of an unborn child are governed by several legal provisions, including sections 312 to 316 of the Indian Penal Code, 1860, section 20 of the Hindu Succession Act, 1956, sections 5 and 13 of the Transfer of Property Act, 1882, and section 416 of the Criminal Procedure Code, 1973.
Under the Criminal law
The status of the unborn child in India is covered by the several parts of the criminal law including the Indian Penal Code (1860), sections 312, 315, 316 respectively.
- Section 312 Causing miscarriage: Any individual who intentionally causes a pregnant woman to miscarry, unless such action is taken in good faith to preserve the woman’s life, shall face imprisonment of either kind for a duration of up to three years, or a fine, or Furthermore, if the woman is in the later stages of pregnancy, the offender shall be subject to imprisonment of either kind for a term of up to seven years, in addition to being liable for a fine.
- Section 315 Act done with intent to prevent child being born alive or to cause it to die after birth: Any individual who, prior to the birth of a child, engages in an action with the intent to prevent the child from being born alive or to cause its death after birth, and successfully prevents the child from being born alive or causes its death post-birth, shall be subject to punishment. This applies unless the action was performed in good faith with the aim of preserving the mother’s life. The penalty may include imprisonment of any kind for a duration of up to ten years, a fine, or both.
- Section 316 Causing death of quick unborn child by act amounting to culpable homicide: Any individual who performs an act under conditions such that, if it resulted in death, they would be deemed guilty of culpable homicide, and subsequently causes the death of a viable unborn child through that act, shall face imprisonment of any kind for a duration that may extend up to ten years, in addition to being subject to a monetary
Criminal Procedure Code (1973)
In section 416 of the Code of Criminal Procedure, it is stated that “if a pregnant woman receives a death sentence, the High Court is required to either postpone the execution or commute the sentence to life imprisonment.“
The Transfer of Property Act,1882
- Section 5 of the Transfer of Property Act, states that it is possible to transfer property only to a living person, but Sections 13, a preliminary “agreement” must be made. This states that a trustee should be appointed for the benefit of the child who is yet to be born. The “intrigue” needs to encompass all the remaining enthusiasm of the individual looking to sell the property. Otherwise, the exchange will not yield any outcomes.
- Section 13 of the Transfer of Property Act, further clarifies that an immediate transfer cannot take place if the individual is absent on the date of the transaction. Consequently, the language used in this section refers to “for the benefit of” rather than “transfer to an unborn person.” It is crucial to note that, under the law, a child in utero is considered to exist. A trust can be established to facilitate the transfer of property to an unborn child, rather than executing a direct transfer. If a trust is not created, the property must be conveyed to a competent individual who will eventually transfer it to the unborn child when become competent, i.e., vested interest. The individual must be present before the current owner of the property passes away. The focus is on the child being in the mother’s womb rather than having been born. A deed established as a provision for an unborn grandchild, which does not encompass the entire interest in the property, may still be recognized as a valid ownership document.
The Hindu Succession Act, 1956
Section 20 of the Act stipulates that “A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit from the intestate as if he or she had been born prior to the intestate’s death, and the inheritance shall be considered to vest in such a case from the date of the intestate’s death.” This provision ensures that an unborn child is granted the same inheritance rights as a child born after the intestate’s death, thereby establishing equal status for both the unborn child and the child born subsequently in terms of property inheritance.
Status of an unborn child in Foreign Jurisdictions
In 1973, the United States experienced the pivotal case of Roe v. Wade, which established a constitutional right to abortion. While acknowledging the state’s valid interest in safeguarding the life of a foetus, particularly as it nears viability, recent years have seen several states enact laws that impose restrictions on abortion, frequently citing the assertion that a foetus possesses a right to life. This development has led to ongoing discussions and legal battles that revolve around the delicate balance between the foetus’s right to life and an individual’s right to bodily autonomy and reproductive choice.
In 2022, the US Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization[6], the landmark decision in Roe v. Wade was overturned, with the ruling stating that there are no constitutional rights to abortion. This change permits individual states to impose substantial restrictions or outright bans on abortion access, marking a significant transformation in reproductive rights within U.S. law.
The USA has also passed The Unborn Victims of Violence Act, 2004[7]. The Act provides a definition for the term ‘unborn child,’ referring to a child in utero. Additionally, the phrases ‘child in utero‘ or ‘child, who is in utero denote a member of the species Homo sapiens at any developmental stage, residing in the womb. The Act stipulates that any individual who inflicts death or bodily harm upon an unborn child is committing a distinct offense as outlined in subsection (b) of the Act.
International human rights law recognizes the right to life as a fundamental entitlement, as articulated in various instruments, including the Convention. It also extends protection to the unborn child within the framework of children’s rights. Nevertheless, the scope of this protection and its application in practice, particularly in relation to the balancing of other rights, continues to be a subject of active debate and legal examination.
International conventions, like the Convention on the Rights of the Child, endorse the rights of an unborn child. The Convention on the Rights of the Child (CRC)[8] defines a child as any person below the age of 18 years, which therefore includes even unborn children. The Convention on the Rights of the Child (CRC) clearly acknowledges the right to life for the unborn. In accordance with the Vienna Convention on the Law of Treaties, the preamble of a treaty serves as an essential interpretive framework. The Universal Declaration of Human Rights asserts that every person possesses the fundamental right to life and must not face discrimination in this regard. Additionally, the Declaration emphasizes that every individual is entitled to a standard of living that ensures their well-being, which encompasses access to food, clothing, and necessary medical care for both themselves and their families.
Conclusion
In India, there is currently no specific legislation that directly addresses the rights of the unborn child. However, the Supreme Court has affirmed that the right to life and personal liberty of an unborn child is safeguarded under Article 21 of the Constitution. An unborn child is entitled to the same rights as any citizen, which necessitates legislative amendments to ensure the protection of these rights. This includes the provision of a supportive environment for development and holding parents accountable for any negligence that may harm the fetus. Although there are legal protections for unborn children, these are often conditional and limited, with the law primarily prioritizing the health and autonomy of the pregnant woman. Ongoing ethical discussions regarding foetal rights, especially in relation to abortion and reproductive rights, continue to influence Indian legal principles, and future legal changes are expected to reflect the persistent conflict between foetal rights and personal autonomy.
[1] Kharak Singh v State of UP, [1964] 1 SCR 332, AIR 1963 SC 1295
[2] Unnikrishnan v State of UP, 1993 AIR 2178
[3] Suchita Srivastava v. Chandigarh Administration, (2009) 14 SCR 989
[4] 2023 SCC OnLine SC 1338
[5] AIE 2003 (BOM) HC
[6] Dobbs v. Jackson Women’s Health Organization 597 U.S. 215
[7] Section 1841(d) of The Unborn Victims of Violence Act, 2004
[8] Convention on the Rights of the Child, 20th November 1989.
