This article deals with the Rights of an unborn child with reference to Article 21 of the Indian Constitution. This Article has been authored by Vartika Shukla.
Vartika Shukla
ABSTRACT
A child is considered to be a gift sent by God to human beings. A child is also known as another form of god but, sometimes people are so inhuman that they take the life of the child in the womb itself. Though it is legal to abort a child in the country it is highly questionable whether a child should be given “Right to life” when it is a fetus. The definition of the fetus is a human organism in development until birth. It is known that a child’s heart starts beating between the second and third week of pregnancy that means a human being has started himself or herself to develop. In our Indian constitution, a fetus is not covered under Article 21. It means that in India, the fetus will not be provided with the benefit of Article 21 until it comes into existence which will happen when the child will come out of the metra of the mother. Though the child cannot be provided with the benefit of Article 21 when it is a fetus, it does not mean that the fetus is not subject to receive any of the rights. The unborn child is subject to some of the rights which will be talked about in the research paper. This research paper will also cover the significance of the fetus and why it should be given the right of Article 21.
Keywords – Womb, Foetus, Article 21, Unborn
INTRODUCTION
There is just a single species on this planet which can save other species and that specie is a human being. To become a better human being, an individual should have a sound mind and a fit body. A good mind and a fit body imply the physical and mental development of a person which must be good. With respect to the development of brain and body of a person, there is a misbelief that it begins when a child lands on earth or it can also be said that it begins when a child comes out of the womb of a mother.
But, generally, we overlook the significance of a womb, where life begins. We may give utmost attention and provide every best possible facility to a newborn baby so that he or she can get every happiness desired by them but, what if a baby is unborn and is still inside the Metra of the mother? What about their rights? Should they be considered as a person? Should they be rewarded the rights which a normal human being does? Well, this question seems to be unanswered as per our constitution.
As mention above in the abstract, a fetus is defined as a human being in the process of being developed. As per our constitution, “No person shall be deprived of his or her life except by the procedure established by law”. The heart of the child starts beating from between 18 to 24 days of the pregnancy of the mother. The beating of the heart signifies that a person is alive and therefore, we can state that a baby gets a life between 18 to 24 days in the uterus of the mother. All the organs of the unborn baby in the womb is developed by the 8th week of the pregnancy of the mother.
Though it takes 8th week for a child to develop all the organs of the body in the womb, the child’s heart starts beating between the second and third week of pregnancy. According to the World Medical Association- “The life of an individual human being begins with conception and ends with death.” [1]Therefore, if the heart starts beating of that little creature inside the womb of the mother, then it clearly signifies that the child in the prenatal chamber of the mother has got a life and he or she should not be deprived of his life by aborting him or her.
As per the preamble, there should not be any discrimination between rights of the child before birth and after birth but, according to “Article 21 of the Indian Constitution”, a person is defined as a human being which has come out of the metra of the mother and it does not consider the unborn child or fetus as a person, which also means that right to life is not provided to the fetus. “Principle 1 of the UN Declaration of Rights of the Child 1959 declaration stipulates: “Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination.”[2]
Therefore, if the united nation-states that the child in the metra and the baby which is born should not be discriminated amongst each other then why does our constitution not consider a fetus as a person and why a fetus is not given the Right to Life?. I will be throwing light on the History of “Right to Life” given to child rights of the unborn child in India and will emphasize on the loopholes of the law in our country for the rights of an unborn infant.
Rights of an unborn child
HISTORY
Children are considered our most valuable resources for ages. Law has been protecting an unborn child from illegal abortion since a very long time. Law of our country has always protected the unborn child from an illegal abortion. The medical profession has been taking the Hippocratic oath since the 19th century. The oath states that the doctors will not serve any wrong treatment to their patients and will never procure a woman to terminate a child in her womb. Doctors are said to be the life saviour and hence are referred to as God. It is the responsibility of the doctor to provide the best possible treatment to pregnant women so that the new young one can step out in the real world. Therefore, it is the duty of the doctors not engage themselves in illegal practices like the determination of sex of the unborn infant, illegal Medical Termination of Pregnancy etc. It was identified in the mid of the 19th century that the child before and after birth required special need and the child needed to be handled very carefully as a child is very sensitive require to be kept under the observation of the parents every moment.
The world has always considered an unborn infant as a person in existence. The law has been in function since centuries all around the world. By the mid of the 19th century, the world could understand that the child before and after birth required special attention. The first recognition for the requirement of special needs to the children was found in the 1924 Geneva Declaration of the Rights of the Child. Due to World War 2, the Geneva Declaration was altered and two new points were added. Out of the two points, one of the points stated that the child must be protected irrespective of the caste, creed or nationality. There should not be any discrimination made between the child due to his or her nationality, caste or creed before or after birth. The Geneva Declaration also stated that the child must be given the proper care so that there is no hindrance in the development of the child mentally or physically. According to the first draft of the International covenant (1947), it was observed in the very first session that the concept of human rights protection for “any person, from the moment of conception” was recognized. [3]
It stated that it shall be illegal to deprive the life of any person from the time of conception, which means The Right of Life is given from the time of conception. The fourth Geneva convention clearly stated that the child before birth was clearly accepted and understood as a fundamental humanitarian duty. The universal declaration of 1948 provided similar protection to the infant before birth and the infant after birth. The protection of the unborn infant has been the prime concern and it could be seen again in the Geneva Protocol 2. The Geneva Protocol 2 stated that the death penalty shall not be imposed on a woman who was pregnant or whose children were of young age. It also stated that the death penalty will not be pronounced to the person who was under the age of 18 years at the point of the offence. The prime concern which could be seen in the Geneva Protocol 2 is the unborn child. If the death penalty is imposed on a pregnant woman or a woman who has a young child, then the life of the child along with the accused woman will also be ruined. The law cannot take away the life of an innocent infant who is in the metra of the accused woman and therefore, pregnant woman and woman who had young children were not sentenced to the death penalty.
The care towards the rights of an unborn child and its life can also be seen in the “Draft Declaration on the rights of the child” (1950)- “even from before birth”. It was stated in the draft declaration on the rights of the child that the child before birth shall be entitled to grow and develop in health before birth. Thus, it is vivid enough from the above conventions that the unborn child is as similar as a normal child and he or she also has the Right to Life as normal human beings. As mentioned in the above convention, it is clear that a fetus is as similar to as a person and the fetus also deserves every fundamental right a normal child deserves. But, in India, the law relating to the rights of the fetus is subject to a lot of questions. The law in India states is still unsure and is subject to a lot of questions due to the uncertainty to consider the fetus as a normal child or not. In India, abortion was criminalized under the “section 312 of the Indian Penal Code” till 1971. Abortion was only allowed in cases of emergency when there was a peril to the life to the baby or the mother.
After 1971, abortion was decriminalized and was allowed until 20 weeks of pregnancy which was later increased to 24 weeks in the amendment made in 2020 as per the medical termination pregnancy act,2020. It is a subject of concern for the lawmakers as if we allow a woman to abort a child, then it will be regarded as murder because the infant in the metra of a mother starts developing itself since the day of conception and it’s heartbeat starts functioning between the third and fourth week of pregnancy. As the child starts developing itself since the day of conception, allowing a woman to abort her child will lead to murder. But, article 21 provides the right to life only to a person who is existing physically. It is still not clear legally whether the unborn child should be considered as a person or not. There should not be any iota of doubt that an unborn infant should be viewed similar to a person as it also functions in the same way a normal human being does. The unborn child will develop itself into a fetus and will land on earth one day. The child in the womb breathes and does every activity similar to a normal child and therefore, the unborn child also deserves every right which a normal person deserves but the law of our country is still in doubt whether to involve fetus as a normal person or not.
It is highly debatable because article 21 states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”[4] Due to the lack of certainty whether to consider an unborn child as a normal person or not, it is highly debatable whether the unborn child should be provided with all rights a normal person does or not. It is clear that an unborn infant deserves the equal and identical amount of rights which a normal person does. The unborn child also exists physically in the metra of the mother and one day the child in the metra of the mother will be coming out of the womb of his or her mother then there should not be any iota of doubt to consider the unborn child as a normal human being and grant him every fundamental right which a normal person gets. Therefore, it is vivid enough that in our country, the fetus should be treated in a similar way a normal human being is treated and deserves every right which a normal human being deserves. The unborn child starts to develop himself since the day of conception and starts getting himself ready to ride the journey of life. As per “ Article 21 of the Indian Constitution”, nobody has the right to take away any persons life except by the procedure of law and hence, the unborn child deserves all the fundamental right and he should be granted the “Right to life” as per “Article 21 of The Indian Constitution” similar to a normal person because the unborn child has prepared himself to enjoy the journey of life since the day of conception.
Rights of an unborn child
Different rights of an unborn child in India
The law is considered to be the most important part of the country as it regulates life in the country. It is because of the law that life could be lived easily. If the law would not have existed, then it would be very difficult to manage life so easily. Nothing is perfect on earth and so, the law also has some loopholes relating to some aspects. The right of an unborn infant is a subject of a lot of debates and it is debated whether an unborn child should get the same right a person should get. I have listed out few rights which an unborn child gets.
Limitation Act 1963
In the explanation of Section 6 of Limitations act 1963 a infant in the womb is considered as minor
“Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified there for in the third column of the schedule”[5]
“Explanation.—For the purposes of this section, ‘minor’ includes a child in the womb.”[6]
The Indian Succession Act, 1925
In Section 2(e) of the Indian Succession Act, 1925 it is mentioned that minor is anyone who is below the age of eighteen. So from there, we can interpret that in this case foetus is assumed as a foetus
“Section 2(e) minor means any person subject to the Indian Majority Act, 1875 (9 of 1875) who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years and minority means the status of any such person”[7]
The Indian Penal Code, 1860
The “Indian Penal Code” in its section 312 to 316[8] has implied that anyone who will prevent a child being born alive, or for causing the death of a quick unborn child will be punished depending on the case type. So here also we can see that unborn child has been given utmost importance.
“According to section 312 of Indian penal code, Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.[9]
The Hindu Succession Act, 1956
The “Hindu Succession Act, 1956” Section 20 acknowledge the right of the child in the metra. It treats the child in the womb in the same way as a born child for the inheritance of intestate of a dead person. So we can assume from here that an unborn child should have the same right that a born child has.
“Section 20 Right of child in womb.— A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.”[10]
The Transfer of Property Act, 1882
Section 13 of “Transfer of Property Act 1882” characterizes an unborn infant as a child or an infant in its mother’s metra. An individual still yet to born doesn’t have any presence and isn’t considered a living individual but still, the property can be transferred to the baby.
“Section 13 Transfer for benefit of unborn person.—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, 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 transferor in the property.”[11]
If a baby not yet born can be transferred a property then why not the fundamental Right to life.
The Code of Criminal Procedure , 1973
In Section 416 of “The Code of Criminal Procedure,” it is inscribed that High Court shall order the execution of sentence to be postponed if the women to which the death penalty is given found to be pregnant and may if it thinks correct commute the sentence to imprisonment for life.
“Section416. Postponement of capital sentence pregnant woman. If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment for life”[12]
Here also we can see that indirectly the Code of Criminal Procedure has also recognized the Right to life
By the above-mentioned law, it is evident enough to land on to a conclusion that the unborn infant is considered as a normal human being and the unborn infant is subject to receive the “Right to life” under the “Article 21 of the Indian constitution” which a normal human being deserves. The above-mentioned law makes it clear that there is no difference between an unborn child and a normal human being. The unborn infant and a normal infant is subject to receive the “Right to Life” irrespective of the caste, creed, sex or nationality of the child. Therefore, the law should clearly state that article 21 should be granted to an unborn child and he or she should not be differentiated from a normal human being on any basis.
Rights of an unborn child
Injury to the Unborn Child
“There can be no keener revelation of a society’s soul than the way it treats its children”.[13] In India there are several ways involved to kill a child who is not even born, In fact, our society has found many ways in which they can refrain from having a child, even parents in India for their own selfish reasons try to cause injury to the child through different ways. Here are the different ways in which injury is caused to an unborn infant by our society-:
- Sterilization – In the mid-1970s, India was the first country to introduce a national family campaign. The campaign resulted in more than six million men undergoing vasectomies in a year. Sterilizing a man is a much simple procedure as compared to sterilizing a woman but the number of men going for sterilization is very low as compared to a woman. The sterilization of men is not accepted socially in society as it is believed in society by people that it affects the virility of a man. It is estimated that 37% of the married woman in society are sterilized. The state governments have launched campaigns for woman and men to get themselves sterilized to manage the population of the country. The woman is often promised monetary rewards or incentive if they undergo the surgery. Due to this reason, the husband of the wives forces them to undergo the process of sterilization so that they could be rewarded. Due to this reason, the woman cannot get pregnant and the child’s life is put to an end for the sake of some money. The campaigns organized by the government are sometimes performed by unqualified doctors and they do not use adequate means to operate the woman causing the life of the woman in danger. For the sake of some monetary benefit, the life of the upcoming child is put to an end as after tubectomy, a woman can never get pregnant. According to the “Medical Termination of Pregnancy Act 1971”, a woman can terminate her unborn infant in case of failure of contraception. This will again be against the “Right to Life” of an unborn infant as the unborn infant will be developing himself or herself to be a normal human being in future.
- Forcing of a pregnant woman –There are many cases where a pregnant woman is forced to terminate her child. The woman can abort her child only when there is serious harm to the life of the child or the mother after 24 weeks of pregnancy. There are cases when a pregnant woman are forced to wok during their pregnancy resulting in miscarriage or damage caused to the child. Woman workers who are pregnant are left with no option rather than working or else they would be expelled from the job. As the woman workers belong from poor families, they cannot afford to lose the job and therefore, it results in miscarriage or damage to the unborn infant. By this way, the woman is denied the “Right to life” according to “Article 21 of the Indian constitution” as they are deprived of personal liberty. There are cases where a married couple may have taken all the precautions but still, unwanted pregnancy takes place. In that case, if the woman is forced to have an unwanted child, then it can cause a serious threat to the physical and mental health of the pregnant woman.
- Carelessness of the parents- The carelessness of the parents can put the life of the unborn infant in danger. Consumption of drugs, alcohol, drugs by the pregnant woman may lead to serious threat to the child. The child may be born with drug withdrawal syndrome. The woman who consume a lot of alcohol may give birth to babies affected with fetal alcohol syndrome putting the life of the child in grave danger leading the child to be deformed or may even lead to miscarriage in certain cases. Even if the male parent smokes and the smoke is inhaled by the pregnant woman, it will lead a lot of complications to the unborn child leading to miscarriage or leading the woman to give birth to a deformed child. Not providing adequate care at the time of pregnancy or any kind of harm caused to the woman parent can also cause miscarriage to the woman or result in giving birth to a deformed baby. Parents who are careless and irresponsible perform acts like drinking and smoking. Any kind of carelessness will be both hazardous to the baby and the mother. Therefore, adequate care should be taken by the female and male parents both so that the life of the infant and the mother both are out of danger and a healthy child is born to the parents. Any negligence caused by the parents will result in putting the life of both the infant and the mother at sake and therefore, proper care should be taken to avoid such circumstances. If any harm is caused to the child or miscarriage of the child takes place due to the negligence of the unborn infant’s parents, then the parents of the unborn baby should be granted adequate punishment for causing miscarriage of their child due to their irresponsibleness.
- Sex determination- The society has been underestimating woman since centuries and believe that woman will get married one day and will not be able to lend a helping hand to their parents. Due to this misbelief, parents belonging to poor families or less educated families abort their child if the child is of female gender. Therefore, according to the “Pre conception and pre-natal diagnostic techniques act, 1994”[14], it is illegal to determine the sex of the child by the doctors before the delivery of the child. The lack of education and misbelief that a girl cannot be compared to a man has lead to the termination of pregnancy after finding out the gender of the child to be female. It is a heinous crime to kill a unborn infant in the metra of the mother just because of the gender of the baby to be female. It is very pathetic to come to a conclusion that still the society differentiates between a man and a woman. The society still thinks that a woman is not capable enough of lending a helping hand to the parents due to the lack of education in the country. It is a surprise for the nation to still have such unethical practices going on in the country where a child is aborted because of the gender of the unborn child to be female. Therefore, such a law was made by the government of India to stop such unethical practices by bringing the “Pre conception and pre-natal diagnostic techniques act,1994 act” into force which was later amended in 2002 [15]as people used to purchase ultrasound machines themselves and find out whether the child in the womb is of what gender. The act was later amended in 2002 to prohibit such unethical practices going on in the country. It is very sad to distinguish between the gender of unborn child and aborting it just because the sake of it’s female gender. Still, such unethical practices are going on in the country and people are bribing the doctors to know the gender of the child in the metra itself so that the child can be aborted if it belongs to a female gender.
Status of life of fetus under Indian Constitution
“The article 21 of the Indian Constitution” states that “No person will be deprived of his life and personal liberty except according to the procedure established by law”. Well, it seems that it is a matter of concern for the lawmakers when it comes to determining the status of the fetus under the Indian Constitution. It has always been a matter of confusion and is still unclear whether an unborn infant should be given the rights similar to the right of the child.
As per now, it is unclear whether to give the rights of a normal child to the fetus or not. People have different opinions regarding the matter. Some people say that the unborn infant should be given the rights similar to a normal person and the unborn child should be granted the right to life which every citizen of the country possesses. According to the people, the unborn baby should be granted “Right to Life” because the unborn infant is existing physically in the Metra of the mother.
The unborn infant has started developing itself to become a human being and therefore, the fetus should be granted the access to the right to life as it would be very unfair to deprive him of the “Right to Life”. The other reason stated by the people to grant “Right to life” to the unborn baby is that his body functions in the same way as compared to a normal child as it develops itself day by day and therefore, the unborn baby is subject to receive the right to life as per the Indian constitution.
People also debate against the matter stating that the unborn baby has not yet come into existence and therefore he or she cannot be considered as a human being until the delivery of the child and thus, the unborn infant should be refrained from providing the right to life. “Right to life” is only provided to those people who are existing physically. Therefore as the unborn baby has not yet arrived in the world, he cannot be considered as a person and should not be granted the right to life to an unborn baby.
At the present moment, it is unclear and debates are going on all across the country whether to provide the right to life to an unborn infant or not. Therefore, it is a very broad topic and the status of the life of the fetus is still considered to be questionable as the law of our country has not come on to a conclusion regarding the status of the unborn child.
Conclusion and Suggestions
After having read so many case laws and the laws across India relating to the rights given to the unborn baby, I have reached on a conclusion that the unborn baby should be granted the “Right to Life” and the unborn infant should be considered similar to a normal person. According to the “article 21 of the Indian Constitution,” the definition of a person is someone who physically exists and an unborn baby is considered a person only when he or she takes birth on earth. An unborn child’s rights may be highly debatable but the law should provide all the rights to the unborn infant which a normal person is granted because the unborn baby starts the process of developing itself since the day of conception.
By the fourth week of pregnancy, the heart and nervous system of the baby begins to develop and the baby turns itself into an embryo. The unborn baby develops itself stage by stage and approximately around 37 weeks of pregnancy, the unborn infant is ready to take birth. Therefore, it takes time for the baby to develop itself into a normal human being. Since the day of conception, the baby should be considered as a person. Therefore, the baby should be granted the right to life as it has everything similar to a person and functions in the same way as compared to a normal human being.
Any cruelty or not providing the right to life to the baby should be made against the law. Due to the uncertainty of the law regarding the unborn infant, there are many crimes which are caused and go unnoticed due to the uncertainty of the law. Crimes such as threatening by the woman to cause miscarriage forcibly or any kind of such heinous crimes relating to fetus gets unnoticed. The unborn child deserves every right which a normal person deserves.
The unborn infant should be considered as a normal person and should be made entitled to every right which a normal person is entitled to. The lawmakers should make amendments in the law relating to the rights of the unborn infant and make it vivid enough that the unborn infant is entitled to all the rights which a normal person does. The law should be amended and it should state that the fetus is allowed to develop itself in a healthy environment and there should not be any harm to the life of the fetus.
The law should also come on to a conclusion to punish the parents for being irresponsible towards the care of the child due to which any harm is caused to the unborn infant and should take every measure to ensure that the child is developing without any harm and there is no negative effect to the child for any reason. People should understand that it takes a lot of effort by a woman to carry a child in her Metra for 9 months.
People should understand that it causes a lot of trouble and efforts by a woman to deliver a child as the pain during giving birth to a child is unbearable. We should be respectful towards the efforts made by the woman and men both as the men also make a lot of efforts to give a good life to the child by working day and night. Therefore, strict action should be taken by the law against those who voluntarily cause damage to the fetus or those people who opt for abortion after finding out the gender of the unborn human to be female.
It is very sad and disheartening to find that till today such malpractices are taking place in our country. Many people find out the gender of the baby in the metra and abort it if they find it to be a girl. Though there are laws to restrict such illegal practices still such illegal activities are happening in the country and we are not able to do anything about it as it goes unnoticed. Therefore, a stricter punishment should be served to the accused who is involved in such malpractices and education campaigns should be organized so that people could understand the importance of the girl and boy child both.
Every unborn baby deserves “Right to Life” and the law should provide them a better future by making it vivid to grant them “Right to Life” so that their life can be out of danger. One day, we will also become parents and therefore, it is our moral duty to understand how crucial a child is to the society and the world. We should understand that the law in our country related to the unborn baby is not clear enough and requires amendment. We are educated and understand the need of children in society and therefore, we should always focus on the needs and rights of the unborn child.
We should understand that the problem faced by the unborn child today due to uncertain law can also be caused to our children and other’s children someday and hence, to protect the unborn infant’s rights in future and refine the legal rights of the unborn baby, it is important that the law is amended and “Right to Life” is granted to an unborn baby along with the rights which a normal person is granted. The laws which have been functioning in the country for the unborn infant should be made more strict and the accused should be punished with the strictest punishment possible so that the child is safe from any kind of peril and can develop itself in a safe environment resulting the child to be born healthy.
[…] right to live with dignity and integrity. A mother’s right needs to take precedence over the right of an unborn child. Even the Supreme Court in the case of Ms X and Dr Nikhil Datar vs. Union of India allowed the […]