Right of Unborn Child


March 20, 2020, 1:28 am | Updated July 15, 2021, 11:23 am IST
Right of Unborn Child
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India is a democratic country. Every citizen in India  is entitled to enjoy certain  rights , right from their birth irrespective of what gender, caste , creed etc they belong from.. Every citizen residing in the country is ensured with equality for all..

But what about a child who is still in the mother’s womb i.e about to take birth? Is he/she entitled to any rights? There are many doubts and queries  regarding their rights.

In this blog I shall discuss about the rights of an unborn child in India.


RIGHTS OF AN UNBORN CHILD IN INDIA

There have been many conflicts and cases regarding property rights of an unborn child. The Legislative focus is aimed at women who choose abortion.

Despite there is no legislation or statues that particularly defines the right and position of an unborn child, several legislations defined it to be a legal person by fiction. Though the fact still lies that a child acquires his rights after being born. The state hence requires to pay attention towards the abortion matters once the unborn child has reached the stage of viability. Right to life states that protecting the right of a human being as important and therefore it has to be protected.

The Medical Termination of Pregnancy Act states all the necessary condition and process of when and how a women can get her child aborted and on what conditions. The law makes it very clear that despite a women agrees for abortion, the abortion needs to be signed and agreed by a registered medical practitioner till 12 weeks of pregnancy. Also, the registered medical practitioner should agree for abortion in between 12-20 weeks of pregnancy.

The demerits of this act is that it does not acknowledge a large number of population who might be in need of abortion and also it does not gives right of choices and privacy that every mother should get. This is due to the reason that the act believes termination of pregnancies should be carried solely on medical reasons and nothing else.

Section 312 of the India Penal Code,1860 states that whoever causes a woman with child to miscarry with any evil purpose or say without the motive of saving the life of mother shall be punished with imprisonment which can be extended till three years or with fine or with both. And if in any case a women causes miscarriage intentionally ten she will be punished with imprisonment which can be extended till seven years and shall also be liable to fine.


?PROPERTY RIGHTS OF AN UNBORN CHILD

There are still many confusions and debates regarding this topic. Can a property be transferred in the name of an unborn child? What if the owner of the property passes away before the birth of the child?

Section 5 of the Transfer of Property Act says that a property can only be transferred to a living person and hence does not allow the transfer of property in the name of an unborn child.

While on the other hand Section 13,14 and 18 of the act states the law to transfer the property for the benefit of the unborn child. According to the act, an “interest” has to be created to transfer the property in the name of an unborn child which thereby means that a trustee has to be appointed for the benefit of the yet-to-be-born child. The “interest” should contain the remaining interest in the property of the person who desires to transfer the property or else the transfer stands cancel.

Section 13 says that a property cannot be transferred to a non-existing person and hence the expression “for the benefit of” is used instead of “transfer to an unborn person”.

Under the Muslim Law There are no rights to the unborn child under the Muslim Personal Law and a gift to an unborn person is void except in case of Wakf

To note that a child in mother’s womb is considered to be in existence according to the law and hence enjoys having each and every right

 

Written By:
Neha  Roy

Neha Roy


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