Rights of the Unborn Child in Indian Law: A Comprehensive Analysis

Rights of the Unborn Child in Indian Law: A Comprehensive Analysis

Introduction

The juridical status of the foetus occupies a complex and often contested space within Indian law. While the Constitution does not expressly address fetal rights, a rich mosaic of statutory provisions and judicial pronouncements has progressively acknowledged – though not uniformly – that an unborn child may, in specific circumstances, be vested with legal rights. This article undertakes a doctrinal and jurisprudential analysis of those rights, drawing upon seminal Supreme Court and High Court decisions, statutory frameworks ranging from the Indian Penal Code, 1860 (“IPC”) to the Hindu Succession Act, 1956, and recent constitutional adjudication on reproductive autonomy. The purpose is to evaluate the coherence of Indian law on fetal rights, the normative tensions between maternal autonomy and state interest, and the emerging trajectory of the courts.

Historical and Comparative Background

Classical Hindu law recognised the nasciturus doctrine (en ventre sa mère) well before the modern codifications, treating the unborn as notionally alive for inheritance purposes.[1] Common-law principles adopted during the colonial period further reinforced this protective stance, particularly in property and tort law. Contemporary Indian jurisprudence therefore reflects both indigenous and common-law influences.

Constitutional Framework

Article 21 guarantees the right to life and personal liberty. The Supreme Court has expanded this provision to encompass reproductive autonomy (Suchita Srivastava, 2009)[2] and a woman’s “right to make reproductive choices” (Meera Santosh Pal, 2017)[3]. Nonetheless, several High Courts have read Article 21 symmetrically, recognising a prima facie fetal right to life post-viability (Indulekha Sreejith, 2021; Najila B., 2025)[4]. The constitutional dialectic is consequently characterised by a balancing exercise: maternal autonomy versus the State’s compelling interest in “protecting the life of the prospective child.”[5]

Statutory Recognition of Fetal Rights

1. Property and Succession

  • Hindu Succession Act, 1956, s. 20: confers upon a child in utero at the time of the intestate’s death an equal right of inheritance, with the estate deemed to vest from the date of death.[6]
  • Mitakshara Coparcenary: The unborn coparcener is considered “in existence” for the purpose of partition, entitling him to reopen or seek re-distribution (V. Krishnan v. G. Rajan, 1993)[7].

2. Limitation Act, 1963

Section 6 Explanation treats “a minor” as inclusive of “a child in the womb,” thereby safeguarding the unborn’s remedial rights by postponing limitation periods.[8]

3. Criminal Law Protection

Sections 312–316 IPC criminalise acts causing miscarriage or the death of a “quick unborn child,” implicitly recognising the foetus as a separate victim in certain circumstances.[9]

4. Tort and Compensation Jurisprudence

In Prakash v. Arun Kumar Saini (Delhi HC, 2010), the Court held that a five-month foetus is “another life” and a “person” for the purpose of compensation under the Motor Vehicles Act, 1988, awarding damages for “loss of child in the offing.”[10] Subsequent cases such as Kuldeep Singh v. Parveen Kumar (Delhi HC, 2017) have reiterated that compensation for maternal death must be treated as compensation for two distinct lives.[11]

The Medical Termination of Pregnancy (MTP) Act, 1971 and Judicial Balancing

Statutory Scheme

The MTP Act furnishes a qualified statutory right to abortion, permitting termination up to 20 weeks (now 24 weeks post-2021 amendment) under specified conditions, and without temporal limits where necessary to save the woman’s life (s. 5). Consent of the pregnant woman is indispensable save in limited exceptions (s. 3(4)).[12]

Key Supreme Court Decisions

  • Suchita Srivastava v. Chandigarh Administration (2009): The Court refused non-consensual termination for a mentally-retarded woman, stressing bodily integrity and the requirement that “mental retardation” is not “mental illness” under the Act.[2]
  • Meera Santosh Pal v. Union of India (2017): Recognised that Article 21 protects a woman’s right to terminate a pregnancy with lethal foetal anomaly (anencephaly) beyond the statutory gestational limit, thus reading constitutional values into the Act.[3]
  • State of Rajasthan v. S. (Raj HC, 2020): Affirmed that statutory conditions are “reasonable restrictions” on reproductive choice and that the State’s interest in fetal life may override maternal preference absent the Act’s grounds.[5]

Evolving High Court Approach

A discernible liberal trend has emerged, wherein courts have permitted termination beyond gestational limits in cases of rape, severe fetal anomalies, or grave mental trauma, emphasising the woman’s autonomy and dignity (Neethu Narendran, 2020; ABC v. State of Chhattisgarh, 2020). However, even these decisions engage in proportionality analysis, acknowledging fetal interests.[13]

Personhood, Legal Standing, and Remedies

Doctrinal Bases for Foetal Personality

Indian courts have utilised three primary conceptual tools to accord rights to the unborn:

  1. Nasciturus Fiction: The unborn is deemed born for its benefit in property, succession, and tort contexts.[1]
  2. Statutory Inclusion: Express provisions (e.g., Limitation Act, Hindu Succession Act) that extend the definition of “person” or “minor” to include the foetus.[6][8]
  3. Constitutional Interpretation: Reading Article 21 expansively to encompass fetal life, particularly post-viability.[4]

Compensation and Mass-Tort Contexts

The Bhopal gas settlement (Union Carbide v. Union of India, 1989) extinguished “all past, present and future claims,” including those of unborn victims, illustrating judicial willingness to treat fetal claims as compensable in mass-tort settlements.[14]

Tensions and Harmonisation

The coexistence of fetal rights and maternal autonomy produces inevitable conflicts. Jurisprudence suggests a sliding-scale model: the closer the pregnancy is to viability, the stronger the judicial inclination to protect fetal interests, but never at the total expense of the mother’s life or fundamental dignity. This proportionality approach resonates with global comparative standards while respecting India’s statutory framework.

Emerging Trajectories and Legislative Reform

The MTP (Amendment) Act, 2021 – increasing the gestational threshold and envisaging Medical Boards for anomalies – implicitly balances fetal viability with maternal choice. Moreover, pending proposals to recognise wrongful prenatal injuries under tort law signal a further institutionalisation of fetal personhood. Judicial pronouncements on compensation for stillborn or aborted fetuses under the Motor Vehicles Act, and High Court dicta equating fetal rights with Article 21 protections, indicate a trend towards fuller legal capacity for the unborn.

Conclusion

Indian law accords the unborn child a patch-work yet meaningful set of rights. These rights are most explicit in property, limitation, and criminal statutes, and increasingly recognised in tort and constitutional adjudication. Simultaneously, the judiciary has remained vigilant in preserving the pregnant woman’s autonomy, recognising that any absolute foetal personhood would erode fundamental rights under Article 21. A coherent doctrine, it is submitted, must embrace the following principles: (i) functional personhood of the fetus for its benefit; (ii) proportional protection that escalates with gestational age; and (iii) supremacy of the woman’s life and dignity where an irreconcilable conflict arises. Future legislative and judicial developments should strive to codify these principles, ensuring clarity, consistency, and respect for both nascent and existing human life.

Footnotes

  1. Mayne’s Hindu Law, 12th ed., para 443; V. Krishnan v. G. Rajan Madipu Rajan (Madras HC, 1993).
  2. Suchita Srivastava & Anr. v. Chandigarh Administration, (2009) 9 SCC 1.
  3. Meera Santosh Pal & Ors. v. Union of India & Ors., (2017) 3 SCC 462.
  4. Najila B. v. Union of India (Kerala HC, 2025); Indulekha Sreejith v. Union of India (2021 (5) KHC 269).
  5. State of Rajasthan v. S., (Raj HC, 2020).
  6. Hindu Succession Act, 1956, s. 20.
  7. V. Krishnan v. G. Rajan Madipu Rajan (Madras HC, 1993).
  8. Limitation Act, 1963, s. 6 Explanation.
  9. Indian Penal Code, 1860, ss. 312–316.
  10. Prakash & Ors. v. Arun Kumar Saini & Anr., 2010 SCC OnLine Del 478.
  11. Kuldeep Singh & Anr. v. Parveen Kumar & Anr., 2017 SCC OnLine Del 10278.
  12. Medical Termination of Pregnancy Act, 1971, ss. 3–5.
  13. Neethu Narendran v. State of Kerala, 2020 SCC OnLine Ker 1735; ABC v. State of Chhattisgarh (Chhattisgarh HC, 2020).
  14. Union Carbide Corporation v. Union of India, 1989 JT 1 (SC).