Legal Personhood of the Unborn: Rights, Recognition, and Protection Under Indian Law | Blog
- Legitimate Scrutiny
- Mar 31
- 6 min read
Abstract
The legal rights of an unborn child have been a subject of extensive debate in both ethical and legal spheres. This article explores the recognition and protection of fetal rights within the Indian legal framework, drawing from statutes such as the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), the Hindu Succession Act, the Transfer of Property Act, and the Indian Constitution. It examines how Indian law acknowledges an unborn child’s right to life, inheritance, and protection from harm.
The discussion also highlights judicial precedents, legislative provisions, and the ethical considerations surrounding fetal rights. Special attention is given to the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, which seeks to prevent sex-selective abortions, emphasizing the need for stricter enforcement. Furthermore, the article analyzes the evolution of fetal rights through international human rights frameworks and Indian jurisprudence, reinforcing the argument that an unborn child should be entitled to legal personhood under Article 21 of the Indian Constitution.
By critically assessing the intersection of law, ethics, and human rights, this article advocates for the strengthening of legal protections for unborn children, ensuring their recognition as legal entities deserving of fundamental rights.
Keywords: Rights of an unborn child, Legal rights of fetus, Unborn child rights in India, Right to life before birth, Indian law on unborn child, Fetal rights under Indian Constitution, Legal status of unborn baby, En ventre sa mere meaning, Article 21 and unborn child, Hindu Succession Act unborn child, IPC sections on fetal rights, Unborn child inheritance rights, Transfer of Property Act unborn baby, Geneva Declaration of Rights of Child, Does an unborn child have legal rights in India?, Can an unborn baby inherit property in India?, Indian Penal Code on abortion and fetus rights, What is the legal definition of an unborn child?, Laws protecting unborn children in India, Fetal personhood laws, Prenatal legal protection, Criminal laws on harming unborn child, Right to life from conception, Ethical debates on fetal rights.
Introduction
The law serves as the backbone of a civilized society, governing various aspects of daily life. However, like all human constructs, it is not flawless. One of the most debated legal and ethical issues today revolves around the rights of an unborn child—whether a fetus should be granted the same legal protections as a person. The legal maxim "en ventre sa mere"—which translates to "in the mother's womb"—aptly defines the status of an unborn child. This article explores the legal recognition and rights accorded to an unborn child under various statutes and precedents.
Historical Evolution of Rights of the Unborn Child
Throughout history, different legal systems have recognized the unborn child as possessing certain rights. By the mid-19th century, global awareness regarding the need for prenatal and postnatal protection gained momentum. The 1924 Geneva Declaration of the Rights of the Child was one of the first international recognitions of children's special needs, emphasizing that no child should face discrimination based on nationality, caste, or creed—before or after birth. The declaration also underscored the importance of ensuring a child’s physical and mental well-being from the moment of conception.
One of the fundamental rights in this context is the Right to Life, which has been considered a humanitarian duty since ancient times. The protection of the unborn child has been a legal priority in many jurisdictions. For instance, legal provisions ensure that a pregnant woman facing capital punishment is exempted from execution, reinforcing the principle that the life of an unborn child must not be arbitrarily taken.
Legal Recognition of an Unborn Child in India
The Indian legal framework has evolved to accommodate the rights of an unborn child across various statutes. Several laws explicitly or implicitly recognize these rights:
The Limitation Act, 1963
Under Section 6 of the Limitation Act, an unborn child is considered a minor. The provision states that if a person entitled to institute a suit or legal action is a minor at the time of the prescribed period, the time limit for legal action is extended until the disability ceases. This indirectly acknowledges the legal status of a fetus.
The Indian Succession Act, 1925
Section 2(e) defines a minor as anyone below 18 years of age, which implicitly includes a fetus. This recognition suggests that an unborn child is legally considered a minor in certain contexts.
The Indian Penal Code (IPC), 1860
The IPC, through Sections 312 to 316, criminalizes actions that prevent a child from being born alive or cause the death of a viable fetus. The degree of punishment varies based on the intent and circumstances of the act, emphasizing the importance of fetal protection.
In the Bharat ka Nyaya Sanhita (BNS), 2023, the provisions corresponding to Sections 312 to 316 of the IPC, 1860, are now covered under Sections 109 to 113.
Here's the mapping of the relevant sections:
Section 109 (BNS) → Corresponds to IPC Section 312 (Causing Miscarriage)
Section 110 (BNS) → Corresponds to IPC Section 313 (Causing Miscarriage Without Woman’s Consent)
Section 111 (BNS) → Corresponds to IPC Section 314 (Death Caused by Miscarriage)
Section 112 (BNS) → Corresponds to IPC Section 315 (Act Done to Prevent Child Being Born Alive)
Section 113 (BNS) → Corresponds to IPC Section 316 (Causing Death of Quick Unborn Child)
The Hindu Succession Act, 1956
Section 20 of the Hindu Succession Act recognizes the inheritance rights of an unborn child, treating the fetus as an heir in cases of intestate succession. This provision ensures that an unborn child is not deprived of its rightful share in the ancestral property.
The Transfer of Property Act, 1882
Section 13 allows for the transfer of property to an unborn child, reinforcing the idea that a fetus can hold property rights, despite not being a living person in the conventional sense.
The Code of Criminal Procedure (CrPC), 1973
Section 416 mandates that if a pregnant woman is sentenced to death, the execution must be postponed. In some cases, the sentence may be commuted to life imprisonment, further highlighting the legal system’s commitment to protecting the unborn child.
In the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the provision corresponding to Section 416 of the CrPC, 1973 is now covered under Section 473.
BNSS Section 473 – Postponement of Execution of Death Sentence for Pregnant Women
This section states that if a pregnant woman is sentenced to death, the execution must be postponed. Additionally, the court may commute the death sentence to life imprisonment, ensuring protection for the unborn child.
The provision continues to uphold the legal system’s commitment to preserving the right to life of the fetus while ensuring that justice is served in a humane manner.
The Right to Life and the Indian Constitution
One of the most critical debates surrounding the rights of an unborn child is whether the Right to Life under Article 21 of the Indian Constitution extends to a fetus. While the law does not explicitly mention unborn children, judicial interpretations and various legal statutes suggest that an unborn child deserves protection. The legal framework does not differentiate between an unborn and a born child regarding basic human rights.
The Unborn Child and Gender-Based Abortion
Despite legal protections, one of the most pressing issues in India is sex-selective abortion, where female fetuses are aborted after prenatal sex determination. The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, was enacted to curb this practice. However, implementation remains a challenge, and stricter penalties must be enforced against those involved in such malpractices. Educational campaigns are crucial to spreading awareness about the equal value of both male and female children.
Conclusion: Strengthening Legal Protections for the Unborn
While the rights of an unborn child remain a subject of legal and ethical debate, Indian law does provide significant recognition and protection to fetuses through various statutes. The legal system acknowledges the unborn child’s Right to Life, property rights, and protection from harm, emphasizing its status as a legal entity. However, stricter enforcement and continued legal evolution are necessary to ensure comprehensive protection.
Moving forward, policymakers and judicial bodies must work towards bridging the gaps in legislation to explicitly grant full legal personhood to an unborn child under Article 21 of the Indian Constitution. Ensuring such legal safeguards will not only protect unborn children but will also uphold the ethical and moral principles of human rights.
Author's Details
Priya Agrawal
The author of the above blog is a Second year law student at Nathmal Goenka Law College, Sant Gadge Baba Amravati University.
Email: priya1407agrawal@gmail.com
Disclaimer: The blog mentioned above has been prepared by the author as part of their internship at Legitimate Scrutiny. The views expressed herein are solely those of the author and do not necessarily reflect the views of Legitimate Scrutiny. While every effort has been made to ensure accuracy, Legitimate Scrutiny assumes no responsibility for any copyright infringement or legal implications arising from this content. Readers are advised to verify information independently and seek professional advice if required.
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