PublicationsFETICIDE AND THE RIGHTS OF FETUS

ABSTRACT

Children are considered to be one of the most vulnerable sections of society. Child Rights are considered to be given utmost importance in the legal sphere, but there is one question that still hasn’t been answered correctly, are fetuses to be considered as children or not. This article specifically deals with this debate and tries to give an amicable solution for the issues pertaining to Fetus Rights.

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INTRODUCTION

Over the past few years, the term “abortion” has been in highlights all around the world. Abortion can be defined as the termination of pregnancy either by accident or by choice. In the legal fraternity, debates revolve around legality, liberty, rights of mother and rights of the unborn child (fetus). Religious gurus opine that humans absolutely do not have any authority to deny the right to life to an unborn child, whereas others propose that an individual should not be compelled to sustain an undesired pregnancy. Both sides are extreme in their opinions. Bare desire to abort a child is as awful as refusing abortion to take place to save a women’s life, on religious believes. The opponents and proponents of abortion take the plea of fundamental human rights. To understand this better, this article will try to provide answers to some of the most debated questions. To understand the context, we have to look at the Rights of the fetus. While in the Indian Constitution, no rights are provided to the fetus under the purview of Article 21. This means that the fetus will be protected under Article 21 only when he/she takes birth. Although the fetus is not entitled to benefits under Article 21, this does not mean that it doesn’t possess any rights at all. Here the question arises that after acquiring pregnancy, it takes around 8 weeks for a fetus to develop all organs of the human body, which shows that the child’s heart starts beating during this period, meaning the life of the fetus has already begun. When the life of the fetus is initiated, why is it not given protection under Article 21 of the Indian Constitution? Principle 1 of the UN Declaration of the Rights of the Child, 1959 states that “The child shall enjoy all the rights set forth in this Declaration”.[2] Therefore it is very ambiguous because Article 21 literally says that “No person shall be deprived of his life or personal liberty except according to a procedure established by law”

It is nowhere mentioned that whether a fetus would be considered a person or not. Here are some of the rights which an unborn child or fetus gets:

1. Limitation Act 1963

Section 6 of the Limitation Act 1963 explains that a fetus is to be considered as a minor.

(Minor incorporates an unborn child or fetus)

2. The Indian Penal Code, 1860

Sections 312 to 316 have reflected that any person who will impede a child from being born alive will be punished accordingly.

3. The Hindu Succession Act, 1956

Section 20 of the Hindu Succession Act acknowledges the child in the womb would be regarded in the same way as a born child, as held in N. Ramachandran v. E. Varadarajan [(2014) 5 MLJ 741].

IS FETUS A LEGAL PERSON?

According to Section 416 of the Code of Criminal Procedure, 1973, there will be the postponement of capital punishment if the criminal is a pregnant woman. The Court shall convert the punishment to life imprisonment.

This indirectly conveys how the Code of Criminal Procedure has also acknowledged the Right to Life. Though in India on the other hand, the laws perceive the unborn child as a legal person, it still does not grant any rights till the child is born and the child will get benefited only after that. The United Kingdom follows a similar approach, but the duties of the state towards the unborn child remain very ambiguous. The US law on the other hand does not consider an unborn child as a legal person, as it was held by the Supreme Court in ROE V. WADE. It was held that the unborn child or the fetus is deemed to be treated as a part of the mother.

In the Indian context, several statutes have opined about a fetus being a legal person, one such statute is provided under Section 13 (Transfer for benefit of an unborn child) Transfer of Property Act, 1956, which has provided the right of acquiring the father’s property, after the death of its father, even when the fetus was in its mother’s womb.

DOES FETUS HAVE A RIGHT TO LIFE?

In the modern era, there is a tendency towards acknowledging the fetus as a human being as well as an individual, who is to be treated and protected equally by the law. The fetus starts developing and growing into a human being, accordingly, the fetus should be accorded the right to life.

Recently biologists have discovered that the traces of human deoxyribonucleic acid just after the fertilization of an egg unquestionably exemplifies that the child, even though small, is human life, it is neither potentially, nor potential human life.

According to Jan Langman, “The development of a human being begins with fertilization, a process by which two highly specialized cells, the spermatozoon from the male and the oocyte from the female, unite to give rise to a new organism, the zygote.” This definition makes it clear that life has initiated and if life is initiated, and the fetus is to be considered as a person from the conception itself and thereby he/she deserves right to life as any other human being, hence, it is expected to protect that life with the due procedure as prescribed by the law.

IS ABORTION AN INFRINGEMENT OF THE FETUS’S RIGHT TO LIFE?

The latest technology coupled with better medical research work has proved that life starts from the moment fertilization takes place, owing to this the opponents of abortion concludes that abortion is equivalent to murder. As it is already stated that the heart of the fetus starts functioning at around the 8^th week, similar initiation can be observed in the brain, where electrical brain waves start working, indicating the initiation of life. Therefore, at the time of abortion, if the heart is beating and brainwaves are circulating, it can be considered as the killing of the child. They argue that in such a developed society where it is prohibited to harm any person or take away their life, such acts attract punishment. A fetus is also a person, he/she also possesses the right to life, therefore actions that affect the rights of the fetus should be ceased. This reasoning is however very narrowed in its application. It does not take into consideration rape survivors and even the security of the mother. It is to be noted that if there is a case in which either the mother or the child could be saved, the medical professionals and the mother’s partner will most of the time prefer saving the mother, as without the mother it is very less likely that the baby will survive, also if the mother is saved, she can reproduce again. In the cases of rape survivors, abortion plays a pivotal role as sometimes the victim is underaged (causing physical, mental and psychological harm), bearing pregnancy which aroused from a violent act.

All in all, abortions vary from case to case, abortions for trivial excuses cannot be allowed and on the other hand, abortion cannot be denied in the case of rape survivors, choosing one life, etc.

CONCLUSION AND SUGGESTIONS

In situations where only one among the mother or the child could be saved, where neither of them is at fault, where death is inevitable, the bystanders should not have any say. It is the personal matter of choice of the mother, her better half and specialists to proceed with what is the best alternative. Accidental abortion (uterus gets insubstantial before the growth of fetus), Natural abortion (miscarriage due to fear, shock, defect in organs, etc) could be justified but Artificial abortion (for sake of maintaining body shape, intention to annihilate the fetus) should be condemned. Efforts should be made to help rape survivors, minors and unsound persons to come out and opt for abortion if they deem fit.  Abortion centres should be made more accessible to them, to safeguard the interests of the mother. Similarly, ambiguity and vagueness relating to the rights of the fetus should be undertaken by the authorities, so as to ensure the security, development as well as well-being of the upcoming leaders.

REFERENCE

[1] Image Courtesy: https://libertyhippie.com/2018/11/21/is-it-a-question-of-life/

[2] Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or another opinion, national or social origin, property, birth or another status, whether of himself or of his family