Sanskriti Meena
Rajiv Gandhi National University of Law
ABSTRACT:
The Indian Constitution includes a long and extensive section on the right to life. Both the developing children and the unborn child in the mother’s womb are protected. Many regulations in India were made specifically with women and children in mind. The children gain more from the legislation. Our Indian constitution also grants legal standing to the unborn kid. The unborn child was granted legal standing in all areas, including property, medical jurisprudence, tort law, criminal law, etc. The unborn child’s right problem is rooted in a few important difficulties. Although Article 21 of the Indian Constitution protects the life and liberty of every person, it seems unlikely that this would extend to the lives of unborn children because the word “person” has narrowed its definition. The right to life of unborn children is protected under Article 21 of the Indian Constitution and has been acknowledged in a number of other decisions. Under natural and civil law, the moral and legal rights of unborn human children are known as unborn children’s rights. The law contains several provisions pertaining to unborn children. Everyone in our planet has the right to live, thus anyone who limits their own development may face consequences. Because many nations have varied laws, it matters in the jurisdiction about the legal rights of the unborn child in those nations.
INTRODUCTION:
Since the law controls all aspects of daily life, it is considered the most fundamental component of the nation. If there were no laws, it would be quite difficult to go through life so easily. The law has significant shortcomings in some areas, just as nothing on Earth is perfect. There is a lot of debate on the rights of unborn children, with many individuals disputing the idea that they deserve the same liberties as humans. “In the mother womb” is the legal maxim “en ventre sa mere,” which defines the phrase “unborn” precisely.
The answer to the issue of whether the foetus has life can be used to determine whether the foetus is a legal person. Although our laws contain several rules pertaining to life and death, the actual beginning of life is not taken into consideration by the law. Despite being denied a natural personhood and being disqualified from the right to life clause, Justice A.M. Bhattacharjee contended that a foetus or unborn infant could not be denied the existence of life. He also acknowledged that the baby remains with the mother during the whole pregnancy and possesses life as a foetus under Indian criminal law.
RIGHT TO LIFE OF UNBORN CHILD:
A person is defined under the Indian Constitution’s article 21[1] as a human being who emerged from the mother’s womb. This clause in the Indian constitution does not protect the foetus. It suggests that until the foetus emerges from the mother’s womb, it would not be eligible for protection under Article 21 in India. It has been demonstrated that the foetus’s heart begins to beat 18–12 days after conception. It suggests that the third or fourth week is when the foetus begins to breathe. According to the World Medical Association, an individual’s life begins at conception and ends when they pass away. Therefore, it is clear that the unborn child has a life and that life ought not to be taken from that individual by abortion if the little creature’s heart starts to beat within the mother’s womb. A person’s rights should not be distinguished between those acquired before and after birth, according to India’s Preamble. The issue that emerges in this situation is: Why isn’t the unborn child granted the right to life under Article 21 even when there are other laws in place to assist their protection?
A foetus still has rights to other protections even though it is not able to receive the advantages of Article 21. The foetus is entitled to some rights.
RIGHTS OF UNBORN CHILD AGAINST ABORTION IN MTP Act:
The 1971 MTP act specifies regulations about when, by whom, and where it is legal to terminate a pregnancy, among other things. It also specifies the penalties for violating these laws. In the MTP legislation, the main topic of dispute is that unless the woman is in a life-threatening medical emergency, such as when an abortion is being threatened, no pregnancy may be terminated after 20 weeks has passed. As a result, once the allotted 20 weeks have passed, a mother will be compelled to retain her kid, even if it is discovered that the child has several abnormalities and would not survive after birth. As of 2000, out of 152 nations, 54 either completely outlawed abortion due to religious convictions or only allowed it when it was necessary to safeguard the life of a pregnant woman.
RIGHTS OF UNBORN CHILD AND CRIMINAL LAW IN INDIA:
The Indian Penal Code gives the unborn child the utmost importance in sections 312 to 316. According to these clauses, depending on the type of case, anybody who kills a foetus or stops a kid from being delivered alive would be held accountable.
RIGHT TO PROPERTY OF UNBORN CHILDREN:
Though the Transfer of Property Act’s Section 5 states that property may only be transferred to a live person, the Act’s Sections 13, 14, and 18[10] regulate property exchanges for the benefit of unborn children. It states that a previous “intrigue” must be undertaken to transfer property to an unborn baby. This suggests that a trustee must be chosen with the benefit of the unborn child in mind. All the other passion for the person’s stuff that they wish to exchange must be contained in this “intrigue.” Something else, there won’t be any outcomes from the trade. A guy who is not present on the exchange day cannot be exchanged to immediately, according to Section 13. As a result, the Section uses the phrase “for the benefit of” rather than “exchange to an unborn individual.” It should be noted that a kid in the womb of a mother is deemed to be present, as mandated by law.
It is possible to transfer property for an unborn child through a trust rather than directly. In the unlikely event that a trust isn’t established, the property needs to be transferred to the minor first as a professional individual. The foetus must manifest prior to the death of the final life domain holder. It is intended to be inside a mother’s womb through presence, not through actual birth. A blessing deed prepared for a grandchild who is not yet born might be regarded as a significant record and proof of ownership even when it doesn’t include all of the details surrounding the property.
HINDU SUCCESSION ACT AND RIGHT OF UNBORN CHILDREN:
The Hindu Succession Act, 1956, Section 20, governs the rights of an embryo in the mother’s womb. The property rights of an unborn child are managed in such a way that, should the child be conceived before the death of the property owner, the legacy should be deemed to vest with effect from the date of the intestate. If the child was conceived alive while still in the womb at the time of the demise of the person wishing to exchange the property, then the child may have an identical right to acquire from.
In accordance with Section 20, an alleged unborn child will get only if—
(I) The child was taken into consideration throughout the property owner’s final season of life, and
(ii) The live conception of the kid
If the requirements are satisfied, the child will develop in a manner identical from if he had been born before to the property owner’s passing. The law considers any child, male or female, to have appeared at the point of the property owner’s death if they were still in their mother’s womb.
CONCLUSION:
To safeguard the unborn kid even while it is within the mother’s womb, the legal status of the infant is essential. The stringent rights of the foetus, or the legal sense regarding the rights of an unborn child, should be enforced by the constitution. Over time, the unborn child’s legal standing has changed regarding criminal and civil culpability. The foetal rights also prohibit the mother from miscarrying. In the past, an unborn child’s rights, notably those regarding property, were severely limited; however, current laws and recent revisions grant an unborn kid several legal rights while they are still inside their mother. The situation of mothers’ rights in India was examined, including matters pertaining to surrogate mothers. The American Constitution merely placed greater emphasis on property rights. When property is immediately transferred into the name of an unborn child, property rights are granted in India lawfully. All of the constitutionally guaranteed basic and civil rights are necessary for the rights of the foetus.
FAQs:
Q. What perspectives do various nations have on the rights for unborn child?
A. The rights for unborn infants range greatly between nations due to cultural, legal, and religious influences. While some nations have a more liberal stance on matters like abortion, others have strict rules safeguarding unborn infants.
Q. Why does an unborn child’s legal status matter?
A. An unborn child’s legal status is essential to ensuring their safety and rights, such as the rights of life, property, and safety from criminal activity.
