Crimes Against an Unborn Child: A Jurisprudential View
Legal Personality and Unborn Child:
Legal personality is an artificial creation of law. Nevertheless, who is a legal person has been a question which we still only have muddled answers for. In the very basic sense, a legal person is considered to be a right and duty bearing unit. According to Paton, the confusion of this concept arises from the use of the word ‘person’ in both the legal and philosophical sense. One of the subject matters in which this misconception also arises is the case of an unborn child.
An unborn child is regarded as already born by legal fiction. ‘En ventre sa mere’ (a child in its mother’s womb) is an exception to the rule that only natural living humans are given the status of a legal person. But it is important to note that it is not the same as legal fiction regarding it as a legal person. This is serves as the main basis for the jurisprudence regarding unborn children. The status of an unborn child differs from country to country as it is vital to see how the said country understanding an unborn child with respect to its legal personhood.
An unborn child can process two types of rights namely proprietary rights and personal rights. This article will be focusing on the personal rights of the unborn specifically with respect to the crimes against them which are protected against by the personal rights given to unborn children.
IPC,1860 and Unborn Child:
The following sections protect the interests of the unborn children against the crimes committed towards them. The gist of these provisions is:
S.312 – Causing miscarriage.—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. Explanation. —A woman who causes herself to miscarry, is within the meaning of this section.
S.313 – Causing miscarriage without woman’s consent. —Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 4 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
S.315 – Act done with intent to prevent child being born alive or to cause it to die after birth.— Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
S.316 – Causing death of quick unborn child by act amounting to culpable homicide. —Whoever does any act under such circumstances, that if he thereby caused death, he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
S.299 – Explanation 3 – The causing of the death of a child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
All these sections confirm that there are indeed laws made in order to protect the interests of the unborn children.
In a basic jurisprudential sense, only when an individual or organisation is qualified to sue and be sued in a court of law, is it considered to be a legal person. A unborn child being considered as already born and possessing rights as result only implies that the unborn child is a legal person only in a restricted sense.
In these cases, it is important to analyse the moment the child acquires these rights. A natural person is considered to be a legal person from the moment of their birth until they pass away. For example, with respect to these provisions aforementioned, if any act causes the death of the child while being born due to the act of another party, for example negligence of the doctors, and this act causes the child to be born alive but later dies due to the injury previously caused, it is considered murder. It also applies for situations where the child is partly born alive.
At the same time, while there is a complication and only one out of the two, that is the mother and the child can be saved, preference is given to the mother. This is because the mother is already a legal person in the eyes of the law while the unborn child is regarded as already born by legal fiction. As stated earlier, being regarded as a legal person by legal fiction and being a legal person in itself is different. Unborn children are not yet persons. It is important to note that, if the child is still born all the legal personality and the rights attached to his personality falls off ab-initio.
Right to life of an unborn child:
An unborn child does not have a right to life. The crimes against the unborn child listed above are not given as a right to the unborn child because the unborn child has a right to life. These are offences because the society has decided that these are wrongs or offences that should not be committed.
Abortion and crimes against the unborn child:
Abortion is a sensitive topic when it comes to the rights of an unborn child. In this case, it is significant to characterize at what point of time a foetus can be considered an unborn child or a legal person with rights. The abortion laws of the country deal with this aspect in detail.
According to the Medical Termination of Pregnancy Act, 1971, a pregnancy that has lasted for a period below 20 weeks, the mother can go through with the process of abortion. In cases between a period of 20-24 weeks, the approval of authorized medical boards is required. For abortion of the foetus above 24 weeks, the threat to the life of the mother, to the child or many other reasons have to be provided to show that the reason for abortion is valid.
As mentioned earlier, the mother’s life and interests would be given preference to as the mother is already a legal person in the eyes of the law while the unborn child is only regarded as already born by legal fiction.
Crimes against unborn children are recognized under the Indian laws. The important conclusion is that an unborn is considered to be already born and thus given these rights. The concept of right to life does not apply to the unborn children and the reason the offences against them are laid down is because the society considered these acts as offences or wrongs. Thus, even while being a restricted legal person, the unborn children are allowed by the laws of our country to have rights that would protect their life and property.
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ARTICLE WRITTEN BY SWETA SHOUMYA
 The Indian Penal Code, 1860, §312
 The Indian Penal Code, 1860, §313
 The Indian Penal Code, 1860, §315
 The Indian Penal Code, 1860, §316
 The Indian Penal Code, 1860, §299