Stature of an Unborn – Do Unborns have a Right to Life?

Image Courtesy – Adrian Kendall

There is a common misconception that a person’s brain and physical development begins when the infant is born from the mother’s womb. However, we often underestimate the importance of the womb, which is where life begins. We may offer a newborn infant our undivided attention and provide every conceivable facility so that he or she can experience all of the happiness that they desire, but what if the baby is still unborn and still inside the mother’s womb? How about their legal rights? Should they be treated as individuals? Should they be given the same rights as normal human beings? As far as our Constitution is concerned, this question appears to remain unresolved.

This article aims to answer all these questions. The legal rights of an unborn fetus have been a source of contention at both the national and international levels. The question to explore is whether a fetus can be given the status of a human being and the status of a person from the moment it is conceived. The fetus is treated as an element of the woman who is carrying it in most legal systems around the world and thus depriving it of any rights as a separate creature. The fact that the phrase ‘biological individual’ is broken into ‘human being’ and ‘person’ in the present legislation of many states is the reason that distinct values are ascribed to the ‘life inside the womb and extracorporeal existence.

Status of an Unborn in the United States of America

In the USA, except for a few extremely specialized uses, the law did not recognize the existence of the fetus until recently. The unborn was never recognized in the law, and the law has been reluctant to grant any legal rights to the unborn child, “unless in only just specified instances and only when the rights are dependent upon the safe and healthy delivery of such fetus,” as noted by the Supreme Court in Roe v. Wade in 1973. These exceptions were in line with the idea of the fetus as a member of the woman because they needed a live birth. The fetus was not given any rights apart from the pregnant woman, and it was only after the fetus was born alive that the fetus was given legal rights as “a separate legal entity.”

For prenatal injuries before the year 1964, the court never allowed tort claims. But presently courts do not restrict the same. The goal of allowing recovery in cases of prenatal harm is to compensate the postnatal child for the suffering he or she must endure. As a result, recovery does not imply that the child has legal rights. As a result, the fetus qua fetal has no rights under the law of fetus. Hence, a consistent viewpoint was maintained stating that a fetus is not a separate entity from the pregnant woman.

The Supreme Judicial Court of Massachusetts became the first American court to decide that a fetus is a person, and hence a possible homicide victim, under Massachusetts vehicular homicide legislation. Similarly, numerous states have passed legislation making the killing of a fetus illegal. The basic controversy that exists in the USA in recognizing the status of an unborn child is that, if it is given the recognition of a person, then it will have the rights like the right to life and the right to be left alone, which is in direct contravention of a woman’s right to terminate their pregnancy.

As a result, it might be claimed that any restriction on a woman’s guaranteed freedom of privacy and liberty, such as the creation of fetal rights that appear to be potentially hostile to hers, must pass the compelling state interest test. It must also be tightly limited, and the state must demonstrate that the law is crafted with expertise to achieve its legitimate goals and objectives using the least drastic means possible.

Do the Unborns have a Right in India?

Fetus Abortion

It is said that a child’s heart begins to beat between the second and the third weeks of pregnancy, it takes until the eighth week for all of the body’s organs to mature in the womb. “The lifespan of an individual commences with conception and ends with death,” is what the World Medical Association says. As a result, if that small creature’s heart begins to beat inside the mother’s womb, it indicates that now the baby in the mother’s prenatal chamber has a life and that life should not be taken away from him or her by terminating the pregnancy. Now, to know about the stature of the unborn child in the eyes of the law, let’s first have a look at the recognition provided to the unborn child in India.

Unborn Child and the Laws of India

Many statutes provide the unborn child with the recognition of a legal person. But before going into those statutes the first thing that is required to be clarified is who is referred to as a legal person. The term person has been classified into two sub-heads in the jurisprudence of law. One is a natural person and the second is a legal or artificial person. As Austin defines it, the term person means and refers to “a natural or physical person, inclusive of every being who can be deemed as a human.”

A natural person in the wake of this definition can be referred to as a living human being.  They have basic rights like the right to vote, to life, to marry, to privacy, to religion, to travel, to practice a profession, etc. These are the kind of rights that are necessary for any human being, thus, they are conferred upon natural persons only.

The legal/artificial person is used to refer to such entities, in which law confers rights and duties, and their ability to sue and be sued for law. Legal personality does not limit to entities or businesses, but also extends to a person’s position, for example, deputy officer, or president, these are the legal positions given to human beings. Now, to come back to the fact that an unborn child is also referred to as a legal person, as per many statutes. This legal personality earlier belonged to a person from the date of his birth to his death. The general rule is before birth and after death, a person cannot have any kind of personality.

However, as per the arguments given by science, and theology, it has been made clear that a child before its birth is also a living entity, meaning thereby that the law only deems a natural person when they have been born, however, the only exception to this has been proved as an unborn child, who remains in the womb of the mother, living, breathing, and eating. That is why certain statutes consider an unborn child as a legal person.

Transfer of Property Act

The Transfer of Property Act, under Section 13 talks about the transfer that is made for the benefit of an unborn person. It says that, even though an individual who has not yet been born has no presence and is not regarded as a living individual, an interest can be created in its name, and such interest, which is created for such person’s benefit shall not take effect unless it covers the entirety of the transferor’s residual interest in the property.

Hindu Succession Act

Section 20 of the Hindu Succession Act, recognizes the child’s right to participate in the womb of their mother. To inherit the intestate of a deceased, it considers the child in the womb in the same way as a born baby. Henceforth, for matters related to succession, an unborn child must have the same rights as a child who has taken birth.

Indian Succession Act

The Indian Succession Act, under Section 2(e), while defining the term minor, states that anyone who is of an age less than 18 years can be referred to as a minor. Hence, it can be interpreted that a fetus in the womb of a mother can also be considered a minor, for this act.

The Limitation Act

The limitation act explicitly considers an unborn child as a minor, hence giving it a legal personality. In the explanation of Section 6 of the Limitation act, it has been expressly stated that for this particular section a minor also includes the child who is in the womb of the mother.

Section 6 stipulates that “where a person has the right to make an application for the execution of a decree or institute a suit or is a minor or insane, or an idiot, at the time from which the prescribed period is to be considered, he may make the application or institute the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the schedule.”

Explanation-“For this section, ‘minor’ includes a child in the womb.” 

Code of Criminal Procedure

The Code of Criminal Procedure does not specifically talk about the legal personality of an unborn child, however, Section 416 of the code makes it a compulsion for the high court to postpone the execution of a death sentence, given to a pregnant woman, until after she gives birth, or if it deems fit can also reduce such sentence to life imprisonment.

Indian Penal Code

In Sections 312 to 316, The Indian Penal Code implies that anyone who prevents a kid from being born alive or causes the death of an unborn child shall be punished based on the case type. It is clear that the Indian Penal Code also gives importance to the unborn child. According to Section 312 of the Indian Penal Code, if someone with intention causes a lady to miscarry her child, must be punished with imprisonment or fine, or both, if they caused miscarriage without good faith.

Constitution of India

The Right to life and personal liberty under Article 21 of the Indian Constitution, is one of the fundamental rights the scope increases day by day. It covers in its ambit the right to clean water, privacy, remaining silent, light, a clean environment, etc. While including these numbers of rights in it, it also includes the right of every person to not be deprived of their life, except as per the procedure, that has been established by the law. The article provides every person with the right to life that cannot be snatched by anyone for any reason, however, the Indian Constitution does not clarify the fetus’ right to life, and it remains unclear on the matter. However, Article 21 provides women with their right to procreation and at the same time the right to abstain from the same.

Other Legislations


In India, the Medical Termination of Pregnancy Act of 1971 and the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994 both acknowledge the rights of a fetus. In the matter of Suchita Srivastava and Anr. v. Chandigarh Administration, the court held that “the right to reproductive independence is recognized by Indian courts as a fundamental right guaranteed to women under Article 21.” Nevertheless, the legislature has imposed reasonable restrictions on those rights using the Medical Termination of Pregnancy Act, 1971, and the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, both of which have been upheld by judicial pronouncements.

In another case the Bombay High Court prohibited abortion for a lady who was 24 weeks pregnant and carrying a child, found major abnormalities in the fetus’ heart, putting the fetus’ survival in jeopardy. Doctors indicated that even if the pregnancy resulted in a child, the youngster would need a lifetime of surgery and could die suddenly. As a result, the Supreme Court has indirectly acknowledged a fetus’ right to life under the Indian Constitution, with the basic right of a woman taking precedence in a constrained and not absolute sense.


In the idea that the rights under Article 21 are extended to the unborn fetus, subject to the rights of the pregnant mother, Indian law differs from that of the United States of America. The legislation also appears to be in dramatic contrast, as the law in the United States enables governmental involvement only once a ‘compelling interest’ has been established.

Until then, a woman’s freedom to make her own decisions about childbirth is unalienable. The Medical Termination of Pregnancy Act of 1971 and the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994, however, limit a woman’s right to abort a pregnancy. Even in the mother’s womb, the unborn child’s legal status is required to safeguard the infant. The constitution should uphold the fetus’s strict rights, which are judicially defined as the life of the unborn child. Over time, the legal position of the unborn child has changed in terms of criminal and civil liability.

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