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Essay: Life and the unborn child

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  • Published: 8 September 2015*
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The word children is applied to infants from their birth but the time when they cease ordinarily to be so called is not defined by custom. A foetus not bigger than a man’s finger but having the shape of a child has been held to be a child.
Blacks’ Law Dictionary defines an unborn child as a child not yet born especially at the happening of some event.
The dictionary meaning of the word ‘person’ is ‘the living body of a human being’, including a man, woman or child. It follows, prima facie, that an embryo in the mother’s womb, which has not yet been born as a human being, is not a person so as to be entitled to any fundamental right. The question whether an unborn child has a right to life comes within the meaning of the word ‘life’ is not fully settled. Article 2 of the European Convention on Human rights says that ‘everyone’s right to life shall be protected by law’. It is contended that ‘everyone’ connotes a person who comes within the exception laid out in Article 2, and thus assumes that such a person is already born.
Cases relating to ‘life’ in this topic are involved in the case of abortion. In such cases ‘domestic law’ is given prominence. In Paton v. UK the commission examined the law and constitution of various states including the American constitution on Human Rights 1969 where it was stated that under Article 4(1) that ‘life’ begins from the moment of conception. In Germany, when considering Article 2 above, it was stated life begins from 14th day after conception.
Right to life is the most fundamental of all human rights, and any decision affecting human life, or which may put an individual’s life at risk, must call for the most apprehensive scrutiny. The sanctity of human life is probably the most fundamental of human social values. It is recognized in all civilized societies and their legal system and by the internationally recognized statements of human rights. Article 21 is a declaration of deep faith and belief in human rights. In this ‘pattern of guarantee woven in Chapter III of the constitution, personal liberty of man is at root of Article 21 and each expression used in this article enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power.
Right to Life does not include the Right to take another person’s life and it is a punishable offence. An unborn child can be regarded as a living entity of its own. Article 21 of the Indian Constitution may be interpreted to mean that the word ‘person’ applies to all human beings including the unborn offspring’s at every stage of gestation. The state cannot discriminate against persons who are foetuses by offering them less or no protection than other persons. Therefore, the state is under obligation under Article 21 not only to protect the life of the unborn child from arbitrary and unjust destruction but also not to deny it equal protection under Article 14 of the Constitution of India.
In Vinod Soni and Anr. v Union Of India it was observed by the Bombay High Court that ‘A child conceived is therefore entitled to under Article 21, as held by the Supreme Court, to full development whatever be the sex of that child. The determination whether at pre conception stage or otherwise is the denial of a child, the right to expansion, or if it can be so expanded right to come into existence.’
A clear definition of the word person has not been provided under the constitution. Under Article 367(1) unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the legislature of the domain of India.
In Jabbar and Ors v State Justice M.H. Beg stated that ‘the term ‘person’ has not been defined in a technical or narrow sense in the section 11 of Indian Penal Code, 1860 (IPC). Section 11 defines it in the same way as the term ‘person’ has been defined in Section 3(42) of the Central General Clauses Act, 1897.This is hardly a definition. It seems to be only an indication of the intention of the legislature to use the word ‘person’ in a fairly wide sense so as to include even artificial persons. The word person is said to be derived from ‘persona’ which stood for the mask worn by an actor on the stage amongst the ancient Greeks and Romans. In law it implies the juristic personification of an entity which may or may not be an animate being.’
Justice M.H. Beg further added ‘An unborn child can be regarded as a living entity with a life of its own. The word ‘person’ is defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as ‘an individual human being’ or ‘a man, woman, or child’; and, secondly, as “the living body of a human being”. I do not think that it can be denied that an unborn child in advanced stages of pregnancy has a being or life of its own and that it has a body. It may he that its life and body are not independent of the mother’s existence so that the unborn child cannot be said to have a separate exist-once. The word ‘person’ has not been defined in such a way as to involve a separate existence or the living creature spoken of as ‘a person’. As there is no such technical definition, I prefer to adopt the ordinary meaning of the term “person” as including a ‘child’ whether born or unborn. Even if the child is unborn and within the womb of the mother, it is capable of being spoken of as a ‘person’ if its body is developed sufficiently to make it possible to call it a ‘child”.
The word ‘person’ has not been defined by the Indian Penal Code in such a way as to involve a separate existence of the living creature spoken of as ‘a person’. As there is no such technical definition, the court prefers to adopt the ordinary meaning of the term ‘persons as including a ‘child’ whether born or unborn.
In Elliot v. Lord Joicey and Ors it was held that “From the earliest times the posthumous child has caused a certain embarrassment to the logic of the law, which is naturally disposed to insist that at any given moment of time a child must either be born or not born, living or not living. This literal realism was felt to bear hardly on the interests of posthumous children and was surmounted in the Civil Law by the invention of the fiction that in all matters affecting its interests the unborn child in utero should be deemed to be already born. Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partus quaeritur: quanquam alii, antequam nascatur, nequaquam prosit”
Child in Womb is Equal to a Person in Existence
In an English case R v. Tait the Court of Appeal quashed the conviction of a burglar on the ground that ‘threat to kill a foetus’ is not an offence directed against the ‘another person’. The foetus in uterus was not in the ordinary sense another person distinct from its mother. In another case R v. Sullivan midwives who attended the delivery of a foetus that failed to survive birth were charged with the offence of criminal negligence of causing death to another person (foetus). The conviction by the trail court was set aside, by the British Columbia Court of Appeal on the ground that a foetus that was not living on complete removal from its mother’s body was not a ‘person’ but the court substituted a verdict of guilty of criminal negligence causing bodily harm to another person, namely the pregnant woman. The foetus in the birth canal was found to be a part of the mother, so that injury to the foetus constitutes injury to her. This view was rejected in alter case, Bonbrest v. Kotz and the unborn child was recognized as a human being. The unborn child need not reach the stage of viability of maintain an action for recovery of damages under the law of torts . Thus the unborn child to whom live birth never comes is held to be a person who can be the subject of an action for damages for his death. The Law of Succession also for many purposes treated a child in the womb equal to a person in existence.
In Oriental Insurance Co. Ltd. v. Santhilal Patal an accident resulted in the death of a women and ten month old foetus. The Andhra Pradesh High Court held that an unborn child aged five months onwards in the mother’s womb till its birth can be treated as a child in existence. The unborn child to whom the live birth never comes can be held to be a person who can be the subject of an action for damages for his death. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing.
In Manikuttan v. M.N. Baby where an accident resulted in the death of a pregnant woman carrying a four month old foetus. The Kerala High Court held that foetus is another life in the woman and it comes as a baby in the course of time. Loss of foetus upon death of a pregnant woman is actually loss of a child in the offing for the husband of the woman. The Court held that compensation to be granted for the death of pregnant women is for loss of two lives.
Regarding the law in India, Acharya Dr D.D. Basu in his book on ‘Human Rights in Constitutional law’ concluded that:-
Regard for sanctity of the embryo from the moment of conception is enjoined by the Hindu Scriptures. Thus, the destruction of a foetus is condemned as a heinous offence equal to Brahmahatya. In this condemnation, no distinction appears to have been made between different stages of gestation. The Garbhoponishad, which gives a meticulous account of the development of the foetus from the moment of conception of the mother, it states that from the second day after the entry of the male semen into the female uterus, the semen gets thickened and from the 8th day it takes the shape of a ball which is transformed into a lump after 15 days, leading to the creation of the head and the legs after two months. It follows that it would be an offence if the embryo is destroyed even at the nascent stage.
In Davis v. Davis where a divorced wife and husband disputed on claiming of right on frozen Preembryos for implantation to have a child, the judge concluded that as a matter of law, human life begins at conception and the legal provision governing a human being existing embryo in vitro to be those of child custody law, dominated by the obligation to seek, protect and advance the best interest of the child. Since the time immemorial Indian law too treated the termination of pregnancy as an offence.
Section 315 of The Indian Penal Code, 1860 recognizes that an embryo is entitled to legal protection of the unborn child’s right to life. Section 312 to 316 of Indian Penal Code provides for punishment for abortion or for destruction of the unborn child. Section 312 provides for imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine to the woman causing miscarriage to a child. By treating the act of procuring an abortion as an offence, an inherent protection has been provided to the foetal right.
The Madras High Court in a decision as early as in 1886 in Queen Express v. Ademma analyzed the distinction made in the Indian Penal Code between a woman with child, and a woman quick with child, and between the unborn child and quick born child , which goes to show that a woman is with child during the entire period of her pregnancy, and lexically as well as logically, a child is a person having life. This was pointed out by the English expression ‘pregnant’ means to be with child and the Indian equivalent ‘antaswatta’ unmistakably mean to have life within.
Section 3 to 5 of The Medical Termination of Pregnancy Act, 1971 is by way of a pro tanto exception to the IPC, the law has become complicated and can be understood only if it is discussed under the following heads :-
I. The Stage from conception to the end of three months of pregnancy- Causing abortion at this stage is punishable under Section 312 of IPC (unless it is caused in good faith for the purpose of saving the life of the woman), if it is caused by the woman herself or anybody other than a registered medical practitioner. When the abortion is caused at this stage by a registered medical practitioner, it will be no offence provided any of the following conditions are present, which take out the case from the pale of the IPC :-
The Medical Practitioner must have formed an opinion in good faith –
a) That the continuance of pregnancy would involve a risk to life of the pregnant woman or of grave injury to her physical or mental health .
b) Or, that there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
II. The stage from the fourth month of pregnancy up to the end of the seventh month (i.e. before the foetus is 210 days old.) In this case, punishment under Section 312 of IPC shall be heavier. In this case, medical termination will take out the case from the IPC only if two registered medical practitioner form the opinion as stated above.
III. After the foetus has lived for 210 days in the mother’s womb. At this stage, no offence is committed if the child is born alive (though premature) a no injury is caused to the mother or the child.
The essential elements regarding the consent of Husband and wife under the Medical Termination of Pregnancy Act, 1971 is dealt below under the title Right to Abortion.
Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 prohibits the pre-natal tests of sex determination of the foetus, through which unborn female child could be protected. After expiry of three months, the foetus then presumable has the ‘capability of meaningful life outside the mother’s womb’ and this stage is known as ‘quickening’ i.e., when the foetus first starts recognizable movement in the Uterus. At this, state acquires compelling interest to protect potential. These provisions also show that India recognizes right to life of the unborn child.
The right of a child is ‘en ventre sa mere’ in the family property and inheritance are very well recognized. ‘A child in the womb’ of the mother is for most purposes regarded in English law as being already born, but in Hindu law a child in his mother’s womb is equal in many respects to a child actually in existence .
Section 20 of the Hindu Succession Act, 1956 has conferred a right to an unborn child, who was in the mother’s womb when the father died intestate to succeed the father’s estate. The section deals with the right of a child born after the death of the intestate. It imports a fiction saying that the child in the womb shall be deemed to have acquired the right to inherit to the intestate as if he or she had been born before the death of the intestate. The concept behind is this is that, at the time of the death of the intestate, the child is alive, and the child acquires equal rights along with other heirs.
Section l3 of the Transfer of Property Act, 1882 deals with the transfer of property for the benefit of unborn persons. According to this Section where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer. Thus the Transfer of Property Act also recognizes the interest of unborn child as a person though not in existence.
According to Salmond’s:-
Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur.
Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. The explanation to Section 6 states that for the purposes of this section, ‘minor’ includes a child in the womb.
The Matrimonial laws also recognized the right of unborn child to birth. In Sushil Kumar v. Usha the court held that aborting the foetus in the very first pregnancy by a deliberate act without the consent of the husband would amount to cruelty. Here the intention of the Legislature may be understood to bring the unborn child safely to the world. Neither wife nor the husband individually takes a decision to abort the child. However, such collective decision is also subject to the provisions Indian Penal Code and the Medical Termination of Pregnancy Act. When there is no possibility begetting a living child with all human potential it is better to prevent such child to be born and thereby save it from earthly miseries. However, the right to abortion and the right to birth must be decided on the merits of each independent case. Any rigid principles in this concern would to unnecessary ailment to the mother and to the child in the womb. The Madras High Court considered some important views on the subject quoting an article ‘Legal Protection for the unborn Child’ in the following words ‘The fact the unborn child is physically dependent on its mother prior to birth need not lead to the assumption that it has no relevant separate existence or to the assumption that it has no moral or legal significance.’
In Prakash and Ors v. Arun Kumar Saini and Anr the court was of the view that the rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law causing death of foetus has been held to be an offence under Sections 312 to 316 of the Indian Penal Code, and the law of property considers the unborn child being for all purposes which are to its benefit, such as taking by will or descent.
In Jan Hitai v State of Uttar Pradesh and other the Allahabad High Court has also considered the damages which can be caused by environmental pollution to the unborn child. The court observed that ‘The study shows that unborn babies are at risk too. The unborn child develops the organ of hearing in the fifth month of pregnancy and exposure to high levels of noise can affect the immature cochlea, the spiral cavity of the ear. The babies born may be hard of hearing because they are exposed to the loud clacking of looms long before they enter the world.’
The right of the fetus not to be wrongfully injured before birth has been recognized in tort law also. The leading case of Bonbrest v. Kotz wherein Prosser and Keeton describe the present legal situation as :
‘The child, if he is born alive, is now permitted in every jurisdiction to maintain an action for the consequences of prenatal injury, and if he dies of such injuries after birth an action will lie for his wrongful death.’
Rt. Hon’ble Lord Denning in his book ‘The Closing Chapter’ says:-‘The unborn child…..it is not only the Christian doctrine but it is the doctrine of our law and our common law that the unborn child has a life of its own and a right of its own which is recognized by the law at least from the time of quickening, and the common law has always recognized that.’
Sir William Blackstone, put it in this way: Life is the immediate gift of God, a right inherent by nature in every individual, and it begins in contemplation, at law as soon as the infant is able to stir in its mother’s womb.
Such a child was protected by the law almost to the same extent as a new-born baby. If anyone terminated the pregnancy and thus destroyed the life of the child he or she was guilty of a felony punishable by life imprisonment.
Any person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes a child to die before it has an existence independent of its mother is guilty of the offence of child destruction, if it is proved that the act was not done in good faith for the purpose only of preserving the life of the mother. The punishment for this offence is imprisonment for life or for any shorter term.

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