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The law is regarded as the most essential aspect of the country since it governs everyday life.  It would be extremely tough to tackle life so smoothly if the law did not exist. As nothing is flawless on our planet, the law contains certain flaws in certain areas. The right of an unborn child is a hot topic of controversy, with many people questioning whether an unborn baby should have the same rights as a person. The term unborn can be perfectly defined using the legal maxim “en ventre sa mere” which means “in the mother womb”. In this study, we are going to discuss the rights possessed by an unborn child. 


The question of whether the fetus is a legal person or not can be answered based on the response for the question of whether the fetus has life or not. Our laws have several provisions addressing life and death, yet from the inside, the law is unconcerned with when life truly begins.  

Justice A.M Bhattacharjee opined that although fetus or the unborn baby being denied natural person and omitting it from the right to life clause on that basis could not deny the presence of life in it. He also admitted that in accordance with the criminal law of India, the baby is with the mother for the duration of pregnancy and the baby as a fetus has life. 


As per article 21[1] of the Indian Constitution, a person is considered as a human who came out of the mother’s womb. The fetus is not protected by this provision of the Indian constitution. It indicates that in India, the fetus will not be entitled to the protection under Article 21 until the baby comes out from the mother’s womb.  

It has been proven that the heart of the fetus starts working after 18-12 days of conception. It indicates that the fetus gets life from the 3rd or 4th week. As per the World Medical Association, a person’s existence starts at the moment of conception and ends at death.” As a result, if that young creature’s heart begins to beat within the mother’s womb, it is evident that the baby in the mother’s womb has a life, and that life should not be taken away from him or her by abortion. In accordance with the preamble of India, there should be no distinction between the rights of a person before and after birth. The question that arises here is, even after having several provisions supporting the protection of an unborn child, why the unborn child is not given the right to life under Article 21? 

Although a fetus cannot obtain the benefits of Article 21, this does not entail that the fetus is not entitled to any of the rights. Some of the rights apply to the unborn child. 


Here I’m going to highlight some of the rights that an unborn baby has. 

  • Rights provided under Transfer of Property Act to an unborn child

Section 30 of the Transfer of Property Act[3] allows a person to transfer his/her property to the one who is in the mother’s womb. Even though this section does not consider a fetus as a living person, it permits the transfer of property to the same. 

  • Rights provided under Code of Criminal Procedureto an unborn child 

Section 416 of CrPC[4] states that when a woman is given a death sentence, proven as pregnant, then the implementation of the death sentence is either postponed or converted into life imprisonment depending on the case. It reflects that the life of the fetus is taken into consideration. 

  • Rights provided under Hindu Succession Actto an unborn child

Section 20 of the Hindu Succession Act[5] governs the rights of the fetus. It gives the born child and the baby in the mother’s womb equal status and they both have the same right on the inherent property of the deceased. 

  • Rights provided under the Indian Penal Codeto an unborn child

Section 312[6] to 316[7] of the Indian Penal Code given extreme priority to the unborn child. Under these sections, any individual who prevents a child from being born alive or cause the death of a fetus will be liable based on the kind of case. 

  • Rights provided under Limitation Actto an unborn child

In Section 6 of the limitation act[8], the term “minor” includes an unborn baby (fetus). 


In the Laxmanrao Madhavrao V. State of Maharashtra and Ors[9] case, the petitioner’s family consisted of five individuals and two girls on 2nd Oct 1975, the date set u/s 6 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The petitioner argued that the fetus should be considered part of the family unit, resulting in the family being entitled to a ceiling area of 18 acres or more. The court, on the other hand, decided that the unborn baby could not be regarded as a minor under the aforesaid legislation because a child’s age is calculated only after the birth. Furthermore, a baby who is not born until the specified date cannot be considered as a part of a “family unit” to raise the ceiling area.


We can conclude that many crimes are committed and go unreported as a result of the ambiguity in-laws of an unborn baby. Acts such as a mother being forced by someone for a miscarriage or any other horrific crimes involving a fetus go unpunished. Every right that a regular person has is also deserved by an unborn baby. Legislators should make changes to the legislation pertaining to the rights of the unborn child, making it clear that the unborn child has all of the same rights as a regular person. The legislation should be changed to specify that the fetus should be permitted to develop in a healthy atmosphere and that the fetus’ life should not be harmed. The law should also make some provisions so that the parents who are negligent in their child’s care, resulting in any harm to the unborn infant are liable. 

Author(s) Name: Mallela Navya (Damodaram Sanjivayya National Law University, Visakhapatnam)

[1] Indian Constitution, art 21

[2] ‘Rights of Unborn Children in the Law of Torts’ (1921) 34(5) Harvard Law Review <> accessed 25 July 2021

[3] Transfer of Property Act 1882, s 30

[4] Code of Criminal Procedure 1973, s 416

[5] Hindu Succession Act 1956, s 20

[6] Indian Penal Code 1860, s 312

[7] Indian Penal Code 1860, s 316

[8] Limitation Act 1963, s 6

[9] AIR 1979 Bom 276

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