By Adv. Loreign Ovung
Child rights are imperative in today's society, especially in terms of protecting the unborn child in the mother's womb. While there is a general belief that life begins at birth, the significance of the womb where life originates is often overlooked. We may provide the utmost attention and every possible facility to a newborn baby to ensure their happiness, but what about an unborn baby still inside the mother's womb? Should they be considered a person and rewarded the same rights as a normal human being?
Unborn children rights are the ethical rights or legal privileges of the human foetus under regular and common law. The term foetal rights came into wide use after the point of interest case Roe v. Swim that legitimized foetus removal in the United States in 1973. The idea of foetal rights has developed to incorporate the issues of maternal medication and liquor abuse. The just worldwide bargain particularly handling foetal rights is the American Convention on Human Rights which conceives the privilege to life of the baby. While global human rights instruments do not have a general incorporation of the embryo as a man for the motivations behind human rights, the baby is allowed different rights in the constitutions and common codes of a few nations. (Legal Status of Unborn Children in India - LawBhoomi)
In India, while there is no specific legislation or statute that specifically defines the rights and the position of an unborn child under the law, statutes like the Transfer of Property Act, 1882 and the Hindu Succession Act, 1956 recognize and mention the unborn and have defined it to be a legal person by fiction. Under this, the state can and is required to interfere in inheritance matters once the unborn child has attained the stage of viability. As such, as per the Medical Termination of pregnancy (MTP) Act, abortions after 20 weeks pose certain legal restrictions. The right to life of a foetus is covered under Article 21 of the Constitution. Hence, the parens patriae power of the state extends to protecting the life of the foetus from the time it becomes viable, especially after the period of 20 weeks. The State’s parens patriae responsibility is to protect the life and liberty of those who are unable to look after themselves, including the voiceless, defenceless child in the womb.
In India, an unborn child, including a female foetus, does not have legal rights as such, but is protected under certain laws. The Indian Constitution provides for equality before the law and prohibits discrimination on the grounds of sex. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994 prohibits sex-selective abortions and makes it illegal to determine the sex of a foetus for non-medical purposes.
It is also worth noting, the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act of 1994 targets the practice of female foeticide, and it is illegal to conduct sex-selective abortions. However, it's still a major issue in India and more efforts are needed to ensure that the law is enforced and that female foetuses are given the same protection and value as male foetuses.
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. The rights of an unborn child are well recognized in various legal contexts which are as under:
From the above context, after discussing the rights given to the unborn child for the protection of the life and property rights, it is clear that even the unborn child has certain rights of the unborn child. The unborn foetus should be considered as a normal person and should be made entitled to every right which a normal person is entitled to. Laws should be amended to ensure that the foetus is allowed to develop itself in a healthy environment and there should not be any harm to the life of the foetus.
The Vanishing Girls campaign is an initiative of ADF India that aims to eradicate sex-selection in our lifetime and save the lives of thousands of girls who are selectively aborted every day. We are advocating for the strict enforcement of the Prohibition of Sex-Selection Act.
Loreign holds a bachelor's degree in political science from the University of Calcutta and is also law graduate from the Faculty of Law, Delhi University with an experience of over 12 years. She has previously worked for a commercial law firm, handling litigation matters in corporate law.