One of the most debatable topics is right of fetus that is in mother’s womb or unborn child. Whenever the term right is being used it is understood as interest protected by rules of rights and being possessed by a person which always corresponds a duty. Now the question arises here is whether an unborn is considered as a person in the eyes of law and can claim rights as other living human beings. To answer the above question firstly we need to understand the legal meaning of the term person. In general the term person signifies human being. But a person is not necessarily human being like slaves were not considered as persons in legal sense as because they were not entitled to any rights like other human beings. The term person is derived from Latin word ‘persona’ which simply means mask primarily. Later on it was denoted as part played by man in his life. And at lastly it is being understood as a unit capable of being sustaining rights and duties.
A child in mother’s womb is considered as person (rights and duties bearing unit) for many purposes. But the extent of unborn person’s personal or proprietary rights is not being determined. The unborn is regarded by legal friction as already born for property. Under Transfer of Property Act, 1882 property can be conveyed in favour of unborn person. There is no legal bar for owning property by an unborn even before his birth. But rights of unborn are contingent one depends on birth as a living human being. Otherwise the personality attributed to him in anticipation will falls away ab-initio if he never takes his place in the earth among the living.
Constitution of India under Article 21 guaranteed right to life as a fundamental right of every one. Which corresponds a duty on others to not to take some one’s life. That someone can be an unborn person. Keeping in mind that abortion (expulsion of immature foetus) India is allowed only medical ground or in order to protect mother’s life and the procedure of same is prescribed in the Medical Termination of Pregnancy Act, 1971.
The Indian Penal, 1860 penalizes a person for causing miscarriage, causing miscarriage without woman’s consent. The act causing death of quick unborn child is amounts Culpable Homicide. The abovementioned provisions are incorporated in Chapter-XVI which is Offences affecting the human body of Indian Penal Code, 1860.
Now the question which arises is can an unborn has a capacity to sue for injuries caused to it before its birth. Law of tort is that branch of laws which governs sections for damages for injuries. Law of torts does not make any distinction on the basis of age so an unborn has right to sue and be sued under this law for injuries sustained and caused. But the claim of unborn for injuries sustained before birth is accepted by Court of few Nations and at the same time this kind of claim was not recognized by the Courts of other set of Nations. For example Irish Court held the defendant (Railway Company) not liable against action of Child born crippled and deformed because of the injury caused to it by an accident due to the negligence of Railway Company. The reason behind the judgment as per the Court was Railway Company owes n duty or care to the plaintiff as they were unaware about the existence of the same and medical evidence to prove the claim was not certain. But the Canadian Court allowed the claim for damages in same nature of case. But in modern time almost all the countries of the world do recognize the rights unborn person.
