Introduction
The term “person” has evolved significantly from its Latin roots, where “persona” refers to a mask worn by actors in a drama. Today, it encompasses living individuals capable of holding rights and duties. Legally, a “person” can be a natural person or a juristic person, such as a corporation or association recognized by law. But what about those not yet born? The rights and status of unborn persons remain a complex and somewhat grey area in the legal landscape.
Legal Status of Unborn Persons
Legally, a child still in the womb is not a fully legal person. However, legal fictions grant the fetus certain rights, and society assumes certain duties toward the unborn. In India, several laws recognize and protect the interests of unborn children:
Transfer of Property Act: Property can be transferred to an unborn person via a trust.
Hindu Succession Act: An unborn person can have an interest in property, which vests upon live birth.
Hindu Undivided Family (HUF): Under Mitakshara law, an unborn child has an interest in coparcenary property.
Criminal Procedure: If a pregnant woman is sentenced to death, the execution is postponed until the child is born.
These laws illustrate that while unborn persons are not considered full legal persons, they enjoy certain rights under specific circumstances.
Also Read: Precedent As A Source Of Law
Rights of Unborn Persons
Although there is no comprehensive statute defining the rights of unborn persons in India, various laws acknowledge their existence and grant them certain rights contingent upon live birth. For instance:
Abortion Laws: Sections 312 to 316 of the Indian Penal Code address abortion, while the Medical Termination of Pregnancy Act stipulates procedures for lawful abortions, balancing the rights of the woman with the rights of the unborn.
Right to Property: Under Section 13 of the Transfer of Property Act, unborn persons can benefit from property transfers, provided they are in the womb at the time of transfer.
Right of Unborn Persons under the Transfer of Property Act
Section 13 of the Transfer of Property Act states: “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 transferor in the property.”
This section means property can be transferred for the benefit of an unborn person, but the unborn person must be in the womb at the time of transfer, not merely anticipated in the future.
Conclusion
The rights and status of unborn persons remain a nuanced and complex area of law. While not recognized as full legal persons, unborn individuals are granted certain rights and protections under specific legal frameworks. However, ambiguities and grey areas persist, necessitating clearer laws to better address and protect the interests of the unborn.
FAQs
1. Can unborn persons inherit property in India?
Yes, under certain conditions, unborn persons can inherit property. For instance, the Hindu Succession Act allows for the creation of an interest in property for an unborn person, which vests upon live birth.
2. What rights do unborn persons have under Indian law?
Unborn persons have specific rights under Indian law, such as the right to inherit property and protection under abortion laws. These rights are contingent upon the unborn person being born alive.
3. How does the Transfer of Property Act protect unborn persons?
The Transfer of Property Act allows property to be transferred for the benefit of an unborn person via a trust. The unborn person must be in the womb at the time of transfer for the interest to take effect.
Also Read: Ratio Decidendi And Obiter Dicta
Reference: ijcrt.org
