Lecture Notes

Legal Personality of an Unborn

The legal status -or position or standing in law- with regard to unborn- fetus
and embryos.
- The question arises whether the "interests" of the unborn protected by
the various spheres of law assume the colour of full rights.
- In order to properly examine the legal status and personhood of the embryo
and the fetus, it is necessary to determine what exactly is meant when
reference is made to the term embryo on the one hand and fetus on the other.
- The term "embryo" refers to the newly formed organism in its first stages
of growth, these being the stages characterized by the multiplication and
differentiation of the fertilised egg-cell after its implantation, until blood
circulation is established between the new organism and the maternal body.
- The term "fetus" refers to the embryo after two months' growth in the
uterus, when the blood circulation is established and the general anatomy
of the growing organism is formed.' This stage of development thus follows
the embryonic period and continues until birth or abortion.' The transition
from embryo to fetus occurs about eight weeks after fertilisation and seven
weeks after implantation.
-normally a person becomes a legal subject at birth, and the fetus is
regarded as part of the woman or her insides before it is born –[partus
enim antequam edatur, mulieris portio est vel viscerum.]
-It is generally accepted everywhere that people acquire general legal
personality at birth. Some statutes define this moment by requiring that the
birth process must be complete. [Algerian, German , Egyptian Civil Code]
-Although not expressly laid down, most of these laws establish the self-
evident prerequisite that a child must come into the world alive in order
to attain legal personality. [Conditional interest is created]

- The fetus in the womb is deemed to be fully a human being whenever

the question concerns advantages accruing to him when born, even
though before his birth, his existence is never assumed in favor of
anyone else.
- As far as the law is concerned, the fetus attains legal status only
when birth is completed and the fetus is separated from the
mother's body, as long as it lives.

The embryo and fetus: res? (thing)

German Civil Code, as opposed to other European civil codes opened the way
for the introduction of the theory that the human body, whether alive or
dead, and parts of the human body are things in the juridical sense.
In line with this interpretation, a German court in 1970 upheld a patient's
right to his gall-stones removed during an operation, on the basis that "part
of a thing separated from that thing belongs to the owner of the thing".
The embryo and fetus could also be said to be a thing in terms of the
traditional Roman opinion, namely that a thing is everything that serves a
purpose suitable to man.
Since a embryo and a fetus attain biological independence and thus legal
independence only at 22 weeks' gestation, which would mean that before this
point, the embryo and fetus are "things" in this sense which do not resemble
man.

The embryo and fetus: personae

Natural persons, i.e. living human beings, are clearly identifiable. Could the
embryo and fetus perhaps be regarded as a juridical person?
The juridical nature of such a construction is objectionable: the legal status
of juridical persons consists of both rights and duties. The embryo and fetus
cannot be the bearer of duties.
In the absence of a bright-line test to when an embryo and fetus gain "legal
existence", if at all, each area of the law has dealt with the status of the unborn
on its own terms.

Fetal viability

-Fetal viability can conservatively be described as "[t]hat stage of fetal

development when the life of the unborn ... may be continued
indefinitely outside the womb by natural or artificial life-support systems."
- Viability thus denotes a fairly advanced state in fetal development, ie
it refers to survivability. It occurs at the time when the fetus's pulmonary
capability commences and when its brian starts developing the cortical
structure capable of higher mental functioning, ie between 20 and 40 weeks
of gestation.
-Fetal viability as a stage at which the fetus presumably has the capability of
meaningful life outside the mother's womb, is often referred to as such a limit.
Furthermore, embryos conceived in vitro or in utero can be implanted into
another woman's uterus and thereafter carried to term, the latter suggesting
that fetuses today become "viable" at the moment of conception.

ROE vs. WADE

Judgement summary
(1) that a woman has a constitutionally guaranteed unqualified right to
abortion in the first trimester of her pregnancy.
(2) She also has a right to terminate a pregnancy in the second trimester,
although the state may limit that right when the procedure poses a
health risk to the mother that is greater than the risk of carrying the
fetus to term.
(3) In making its decision, the Court ruled that a fetus is not a person
under the terms of the Fourteenth Amendment to the U.S. Constitution.
(4) However, the Court also maintained that the state has an interest in
protecting the life of a fetus after period of viability- that is, after the
point at which the fetus is capable of living outside the womb.
(5) As a result, states were permitted to outlaw abortion in the third
trimester of pregnancy except when the procedure is necessary to
preserve the life of the mother.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Facts: new abortion statutes that required that a woman seeking an

abortion give (1) her informed consent,(2) that a minor seeking an abortion
obtain parental consent (the provision included a judicial waiver option),(3)
that a married woman notify her husband of her intended abortion, and,
finally, (4) that clinics provide certain information to a woman seeking an
abortion and wait 24 hours before performing the abortion.
Before any of these laws could take effect, Planned Parenthood of
Southeastern Pennsylvania brought suit against the governor, protesting the
constitutionality of the statutes.
Judgement summary
-more flexible medical definition of viability.
-[1][V]iability, as we noted in Roe, is the time at which there is a realistic
possibility of maintaining and nourishing a life outside the womb, so that the
independent existence of the second life can, in reason and all fairness, be
the object of state protection that now overrides the rights of the
woman.
-[2]that viability is the point at which the state first has a "compelling interest"
in protecting the life of a developing human being.
- the fetus then presumably has the capability of meaningful life outside the
mother's womb.
- Before viability, the Court decided, the killing of human beings in utero must
be permitted for any reason.
- The States may not enact a law requiring women to provide a signed
statement that she has notified her spouse that she is about to undergo an
abortion to physicians to obtain an abortion.
The American Medical Association has reminded physicians that their duty
is to enable pregnant woman to make an informed decision about her
fetus and they should not attempt to influence her decision or force a
recommended procedure upon her.

Dobbs. Vs. Jackson (2022)

- a landmark decision of the U.S. Supreme Court in which the court held that
the Constitution of the United States does not confer a right to abortion.
-The court's decision overruled both Roe v. Wade (1973) and Planned
Parenthood v. Casey (1992), giving individual states the full power to regulate
any aspect of abortion not protected by federal law.
- On June 24, 2022, the Court issued a decision that, by a vote of 6–3,
reversed the lower court rulings. A smaller majority of five justices joined the
opinion overturning Roe and Casey.
-The majority held that abortion is not a constitutional right as the
Constitution does not mention it and its substantive right was not "deeply
rooted" in the country's history, meaning that individual states have the
authority to regulate access to abortion.

Dr. Datar, Mr. X and Mrs. X v. Union of India (AIR 2008)

Judgement Summary
In this particular case a 24 weeks pregnant patient was forced to carry a
pregnancy to term those medical experts had testified that could end in fetal
demise or result in the birth of a child with a seriously compromised
quality of life.
Since the pregnancy was beyond the legal limit, as per the Medical
Termination of Pregnancy Act, 1971 the Bombay High Court denied the
request made by patient, her husband, and Dr. Datar, failing to recognize the
severe mental anguish suffered by patient.
Why this case is important? 1) It addresses the physical and mental
trauma that may be experienced by women who are diagnosed with severe
fetal abnormalities but are denied the choice to continue or terminate the
pregnancy. 2) It also reveals the ethical dilemma faced by doctors who are
unable to act in the best interest of their patients because their hands are
tied by the law.
What are the issues that need to be discussed?
1) Under the Indian Constitution the right to life includes both the right to
health and the right to have a dignified existence. With 20-week
restriction in the MTP Act both of these rights are violated when women
are compelled to carry a pregnancy to term that compromise their
health. Denial of access would lead to grave injury to mental health of a
woman who is forced to carry disabled pregnancy and would constitute
violations of the right to freedom from cruel, inhuman, and degrading
treatment, as well as the rights to life, health, and nondiscrimination.
2) The right to safe and legal abortion is a human right. In 2005, the
Human Rights Committee held that denial of abortion in severely malformed
fetus violates a pregnant woman’s reproductive right by causing foreseeable
& preventive mental distress.
3) An abortion law that lacks a health exception throughout pregnancy
interferes with providers’ ability to ethically provide the best quality of care
for their patients, including care needed to prevent foreseeable harm to
pregnant women’s lives and health.
4)If the fetus has legal status & thereby has a legal right of being born
alive then giving permission for its termination at any stage of pregnancy would
cause violation of this right.

5) The fetal right of being born alive has to be matched with right of being
born with mentally & physically healthy life. If the permission to terminate
the pregnancy is not granted as in the above case then it would result in the
birth of a malformed child who will lead miserable life throughout his
existence. Then can it be called as quality dignified life as per Article 21
of our Constitution? Mere existence has got no value. The child not only
would lead compromised dependant life but after giving birth, the upbringing
of the severely malformed child would increase economical burden on the
family & would be a cause of mental anguish & against the societal goal
of family harmony & unity.

6) Right not to be born can also be legal right if the suffering itself is
violation of Article 21; courts till now are unable to decide whether defective
life is worse than non-existence?

There is a need of humanitarian approach & balanced decision.

Present Scenario

MTP 1971 MTP 2021(Amendment)

Termination due - pregnancy may be It allows unmarried
to Failure of terminated up to 20 women to also terminate a
Contraceptive weeks by a married pregnancy for this reason.
Method or Device woman in the case of
failure of contraceptive
method or device.
Opinion Needed one Registered Medical
for Termination Registered Medical Practitioner (RMP) for
of Pregnancy Practitioner (RMP) for termination of pregnancy
termination of pregnancy up to 20 weeks of
up up to 12 weeks of gestation.
gestation.
Opinion of two RMPs for
termination of pregnancy
Opinion of two
of 20-24 weeks of
RMPs for termination of
gestation.
pregnancy of 20 weeks
of gestation. Increases the upper
gestation limit from 20
to 24 weeks for special
categories of women,
including survivors of
rape, victims of incest
and other vulnerable
women (differently abled
women, minors, among
others)
Fetal 20 week limit on Opinion of the State-
abnormalities gestation level medical board is
essential for a pregnancy
to be
terminated after 24
weeks in case of
substantial foetal
abnormalities.
breach of Fine upto Rs. 1000/- Fine and/or
woman’s imprisonment for 1
confidentiality year

LEGAL STATUS TO AN UNBORN

- In South African Law:
-Legal subjectivity commences when a child is born alive.
-However a common law "exception" to this rule. - "the unborn is taken
to have been born if it would be to its advantage"[ The nasciturus fiction
has an important function: it regards the unborn or the fetus as already
born if its interests are at stake.]
-However, the application of this fiction is subject to three
requirements, namely that:
-(1) the application thereof must be to the advantage of the person
concerned;
- (2) such advantage must have accrued after the date of conception;
- (3) the beneficiary must eventually be born alive.
-Protects the rights and interests of an unborn child in certain
circumstances, namely:
 (1) where it has a claim to an inheritance, providing that the testator
died after the nasciturus had been conceived;
- (2) its right to maintenance is recognized in divorce proceedings;
- (3) a claim for loss of support is recognized where the natural father
of the unborn child is killed by a third party;
- (4) a claim for compensation for injuries suffered in ventre matris (in
the womb of the mother)caused through the negligence of a third
party is recognized, provided that negligence and causality are proved.

RIGHTS OF AN UNBORN IN INDIA

Each area of the law has dealt with the status of the unborn on its own terms
in India too.
Property
Under the Transfer of Property Act, 1882, any property (movable or
immovable) can be bequeathed in favour of an unborn child. However, an
interest created in favour of an unborn is contingent on the occurrence of
birth. Further, interest cannot be transferred directly to an unborn, it must
be transferred to another living person or a trust must be created for the
purpose.

Section 13 of the Transfer of Property Act reads 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.’

As the above provision defines an unborn child is a child or a baby in its

mother’s womb. A person yet to be born does not have any existence and is
not counted as a living person, still the property can be transferred to
the unborn child/baby.

Section 20 of the Transfer of Property Act reads as under:

‘Where, on a transfer of property, an interest therein is created for the benefit
of person not then living, he acquires upon his birth, unless a contrary intention
appears from the terms of the transfer, a vested interest, although he may not
be entitled to the enjoyment thereof immediately on his birth.’

Therefore, an unborn child i.e. an Infant En Ventre Sa mere can attain

definite rights and inherit property only if he/she is born alive and such
rights can be vested in the hands of his/her trustees.

Conditions required for the transfer of property to an unborn child:

1. Absolute interest must be made in the favour of unborn child;

 1. Creation of prior life interest in favour of a person who is in existence
on the transfer date.

As soon as the unborn child takes birth [born alive], the property rights
immediately get transferred in his/her name. Post which he or she will be the
sole owner of the property.

The Indian Succession Act, 1925

Section 114 – This section provides for the creation of prior interest before
the unborn child is made the owner of the corporeal or incorporeal property.
However, no property will be deemed to be vested in the unborn child until he
is born alive as per the Act.

Under Hindu Law, an unborn child is deemed to be a living person for certain
purposes. The rights of an unborn child that is in the womb of its mother are
dealt with by Section 20 of the Hindu Succession Act, 1956. As per
Mitakshara Law, in a Hindu Undivided Family, an unborn child will have an
interest in coparcenary property. Under Mohammedan Law a gift in the
name of a person who does not exist is void.

Indian Penal Code, 1860

Section 315 – This section of the IPC states that inflicting prenatal injury on
a child possessing the capability of being born and where such injury affects
it from being born amounts to an offence of child destruction.

Criminal Procedure Code, 1973

Section 416 – This section of the CrPC states that in case any woman who is
sentenced to death is found to be pregnant, an order to postpone the
execution must be passed by the High Court, or if it deems it fit, the execution
can be reduced to life imprisonment.

Indian Scenario: Before M.T.P. Act, I.P.C. Section 312 defined miscarriage
as termination: A) Before or after quickening. B C) By accident or negligence.
D) With intent. (I.P.C. Section 313, 315, 316, 304-A) & this was criminally
punishable. After the M.T.P. Act this situation was changed.

Now the medical termination of pregnancy is allowed only if it is necessary &

only under certain conditions.

Tort Matters

- Will vary in each jurisdiction and discretion rests with the Courts of
such jurisdiction.
- It is interesting to note that rights of unborn under the Law of tort are
Recognized in India too.
- RIGHTS OF UNBORN CHILDREN IN THE LAW OF TORTS. - The child
-His status both in criminal law and in the law of property is
established. But it is equally well established that the reason he may
be the object of homicide is not because he is capable of individual
rights, but only because of the state's interest in life, and that the
reason he is recognized as a person.
- There is no basis, in either case, from which to draw an analogy in
determining the problem whether a child may have a right of action in
tort for prenatal injury. Despite broad statements in decisions to the
effect that " to all intents and purposes" the child en ventre sa mere is
a living person, and despite the favor with which eminent text-writers
regard the existence of this right,no action brought by a child in the
past for prenatal injury has progressed beyond the demurrer stage.
- Nor has the child's right obtained better recognition when its
administrator has sued under statutes similar to Lord Campbell's Act.
Yet, at the same time, the courts have acknowledged that there is a
residuum of damage which cannot be accounted for at the suit of either
of the child's parents. It has been said by one writer that there is a
recognized duty to abstain from injuring the unborn child quite apart
from the duty not to injure the mother, and by a second that every
person has a right to bodily integrity at birth. But neither theorist will
accord the infant his right of action, the former declaring that there is
not for every duty a corresponding right and the latter pleading
inexpediency. The novelty of such an action leads a to conclude that
only by legislative intervention can the residuum of damage be
accounted for.
- But the statutory solution is easier recommended than obtained. The
Japanese Code deems a child en ventre sa mere already born with
regard to claiming compensation for damage; but continental law has
not progressed so far, and the attempt to introduce in Missouri-a
similar provision failed. The step at which courts and legislatures have
alike hesitated has been at last taken by a New York judge, who, in a
recent case 16 in which the injury to the mother - and thereby, it is
alleged, to the infant - resulted from the defendant's negligence,
promptly overruled the defendant's demurrer.
- The most original thought on the subject is the dissent of Justice Boggs
in Allaire v. St. Luke's Hospital."His recommendation was that
whenever a child was so far advanced in pre- natal age that, should
natural or artificial parturition occur, the child could live separate from
its mother, and is thereafter born and lives,such a child has a right of
action for any injuries wantonly or negligently inflicted while in its
mother's womb. Before such a time the child is clearly only a part of its
mother; but thereafter it is something more. This sensible doctrine of
Justice Boggs properly limits the time during which injury to one en
ventre sa mere is actionable to the period of viability.
- But the real difficulty lies in proving medical causation. If science
cannot trace the deformity in the born child to the injury to the mother
before its birth, it is idle for the law to speculate. This difficulty does not
arise where there is negligent injury by direct application of force to the
child's body before birth - as by the forceps of the accoucheur. Under
these circumstances it seems unquestionable that the infant, when
born, should have its right of action. And judges have declared
themselves disposed, should a case of wanton and wilful injury to the
pregnant mother arise, to afford the later-born child his action. But in
the case under discussion the alleged injury to the child was indirect
and negligent. Even so, it is undeniable that medical science is so far
advanced that there are some such injuries which can be unerringly
traced by experts into postnatal deformities.