December 5, 2020

Legal status and Rights of Unborn Persons

The word person has been derived from the Latin word persona which means mask wore by different actors to exhibit different persons in a drama. But in modern days the scope of the word person changed and it referred to the living person who are capable of having certain rights and duties. Further the legal meaning of the word person changed and its scope was further exposed to include various associations and corporates termed as juristic person. Legally persons are natural person and jurist person natural person are living beings and juristic person are those who by virtue of law are considered as person such as a body corporate registered under companies Act or any other law for the time being in force, any association etc.

When law consider some one as a legal person certain rights and duties are enjoyed and imposed on the person. Certain time it may happen that law may take certain rights back from the person. When rights are enjoyed and duties are imposed the question arises is up to what extent the rights can be enjoyed and what are the duties to abide by. When this question arises, the law has mostly in black and white but the rights and duties of an unborn person is still grey. In this article we will discuss what is the legal statues of an unborn person and their rights.

Legal status of unborn person

A child who is still in the womb of the mother is consider not technically legal person but by legal friction the foetus gets some legal rights and the society has certain duty to perform towards such unborn. There are certain laws in India which advocate an unborn child as a person and grants him certain rights some of which are as follows:

In the Transfer of property Act property can be transfer to an unborn person via a trust

As per Hindu succession act interest in property can be created for an unborn person but vesting of interest is only possible when that person is born alive.

In a HUF as per MIT Akshara Law, an unborn child will have an interest in coparcenary property.

Criminal Procedure states that if a female inmate sentenced to death is found to be pregnant, the execution is postponed till the child has a chance to be born.

For instance, it can be said that an unborn person is not a legal person but there are certain exceptions to it and in certain instances and laws is considered as a person having certain rights.

Rights of an unborn person

There are no proper statutes in India which define the rights of unborn person in India but there are many Acts and laws which mention unborn person and their rights. In such enactments unborn person is recognised as legal person by fiction and clearly mentions that the rights of unborn person will only be vested if he is born alive. For this reason, the state interfere in abortion matters when unborn person reaches to certain viability stage

Section 312 to section 316 of the Indian penal code deal with thaw relating to abortion. The medical termination of pregnancy act lays down various laws and procedure to be followed in order to get a child aborted. The law clearly lays down the procedure and despite the choice of the women, makes it mandatory that abortion had to be signed and agreed by a registered medical practitioner up till 12 weeks of pregnancy and between 12 to 20 weeks the registered medical practitioner has to approve it. The laws does not take into account a large section of women in its purview despite the fact that they may be in an utter need of such abortion and even this curtails women right to choose to have or not to have a baby and aspects her to protect the rights of such unborn person with whom she does not share any string of emotional attachment. The women right to privacy also comes into question when such laws are enforced on her.

Right of unborn person under transfer of property act

Section 13 of the Transfer of property Act read as follows:

“Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transfer in the property.

This section gives affect to the general rule that property can be transfer in between living person, and there can not be a direct transfer to a person who is not in existence or is unborn that’s why the section uses the expression ‘’for the benefit’’ and not to unborn person. It can be interpreted from the section that at the time of the transfer the unborn person must be in the womb and mere expectation of an unborn person in future will not give rise to the right.

Conclusion

There are many ambiguities in law when it comes to the right of an unborn person and there is still great need to recognise such grey areas and formulate proper laws.


Author Details: Kajal Jain (3rd year student, K.L.E Society’s Law College, Bengaluru).

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