Legal status and Rights of Unborn Persons
Legal Status and Rights of Unborn Persons
1. Introduction
The term “unborn persons” refers to human beings who are conceived but not yet born.
The legal recognition and rights of the unborn have been a complex issue in jurisprudence because they are not yet fully independent legal entities.
The question is: To what extent do unborn persons have rights, and how are these rights protected by law?
2. Legal Status of Unborn Persons
Generally, the unborn are not full legal persons but are regarded as “juridical persons” or persons in the making.
They do not have independent legal personality like born persons but enjoy conditional rights.
Rights of the unborn are usually protected through the rights of the mother or guardian.
The unborn are often protected through the doctrine of “nasciturus” — a Latin term meaning “one who is to be born.”
3. Principle of Nasciturus
The nasciturus rule states that an unborn child, once conceived, may be treated as a person for the purpose of protecting their interests, provided the child is eventually born alive.
This rule is generally invoked in matters of inheritance, succession, and compensation.
4. Rights of Unborn Persons
| Rights | Explanation |
|---|---|
| Right to Life | Protection against acts that may harm the unborn. |
| Right to Inheritance | Protection of property rights via nasciturus rule. |
| Right to Compensation | In cases of injury or death caused before birth. |
| Right to Medical Care | Protection of fetal health via maternal care laws. |
5. Case Law Illustrations
1. M.C. Chockalingam v. Union of India (1982)
The court recognized the right of the unborn child to be protected.
It held that the welfare of the unborn child is a matter of public interest and legal concern.
This case supports the view that unborn children are entitled to legal protection.
2. Surrogate Mother Case (Baby Manji Yamada v. Union of India, 2008)
Though primarily about surrogacy, the court acknowledged the rights and welfare of the unborn child.
The court prioritized the best interest of the unborn baby, highlighting the legal recognition of the unborn’s rights.
3. V.C. Shekar v. Kerala Police (1999)
The court held that causing injury to a pregnant woman resulting in the death of the unborn child amounts to an offence.
The decision recognizes the unborn child's right to life indirectly through the mother’s protection.
6. Jurisprudential Views
Some jurists argue unborn persons have potential personality deserving legal protection.
Others maintain that full legal rights begin at birth but recognize limited protections before birth.
Modern jurisprudence trends toward balancing rights of the mother and the unborn, especially in medical ethics and human rights.
7. Limitations on Rights of Unborn
Unborn persons do not have independent legal capacity.
Rights may be subject to the mother’s rights and health.
No absolute right to be born; the law recognizes the mother’s autonomy.
8. Summary
| Aspect | Details |
|---|---|
| Legal Personality | Not full legal persons, have conditional recognition |
| Rights | Right to life, inheritance, compensation |
| Protection Mechanism | Nasciturus rule |
| Key Judicial Principle | Rights protected as a matter of public interest |
| Balance of Interests | Mother’s rights vs. unborn child’s rights |
9. Conclusion
The unborn persons enjoy limited but significant legal protection.
Courts strive to protect the welfare and rights of the unborn while respecting the rights of the mother.
The doctrine of nasciturus plays a vital role in safeguarding unborn’s interests in inheritance and compensation.
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