Position of unborn child in India - needs for a new legislation

Introduction In a society consisting of human beings, there is always bound to be clash of interests. Thus, the act of one man may from time to time cause damage to others. Whenever a person suffers damage he will look to the law for redress. The law of torts is that branch of law which governs sections for damages for injuries. When child is the injured persons, to what extent he can sue in law of torts. A child can sue and be sued in law of torts. Because the law of torts does not make any distinction on the basis of age. A child is liable in the same manner and to the same extent as an adult for torts committed by him. However, as a matter of procedure only an adult is made capable of conducting the proceedings in the law courts. If the child is plaintiff, he can not himself sue but to bring an action through his next friend.1 If he is the defendant he must be sued through a guardian ad litem.2 The object of having next friend or guardian ad litem is that his interest in the suit should be watched by an adult person. Interestingly enough a child in the mother’s womb who suffered an injury due to an outsider can also sue the guilty for his injury, of course after coming in the world. Talking about parents, they can be held liable if they owed direct duty of care towards their child while he perpetrated a tort.  Now the important question is, can an unborn child (en ventre sa mere) sue for injuries suffered while he is in the mother’s womb. This raises a basic question, is the unborn child, who is yet to come into existence, is a person. The Roman law conferred legal personality on foetus – one who is to be born as one who is deemed to have been born.  En Ventre Sa Mere The French phrase en ventre sa mere (literally, in the mother’s womb) refers to a fetus in utero. It is commonly used in legal English. A child which is still “en ventre sa mere” is accepted to be a minor, provided it is subsequently born alive. The use of this concept in legal language can be traced to English cases in the nineteenth century. In Occleston v Fullalove3, a case heard in the Court of Appeal in Chancery it was argued for the Appellant that although the child in question was “en ventre sa mere” at the date of the Will subject to the litigation, there was neither principle nor authority against such a child having a reputation of paternity. The Court allowed the after-born child to share with her sisters under the Will.  Both under English and Hindu law a child en ventre sa mere is in existence, but this rule is not applied in English law, unless it is directly or indirectly for the benefit of child. An infant en ventre sa mere is supposed to be born for many purposes. It is capable of having a legacy or a surrender of a copy hold estate made to it. It may have an estate assigned to it and it is enabled to have an estate limited to its use and to take afterwards by such limitation as if it were then actually born.4  Whether Child in the Womb is a Person? To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ovum is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an ‘embryo’ from one week to the end of the second month and later it is called ‘foetus’. It becomes an infant only when it is completely born. The life may enter immediately on the date of conception in the form of a small cell, which gets multiplied, but physically a mother can feel the movement of child only when the foetus is twenty weeks old i.e., five months, as the cell changes its structures and texture to become an eye, legs, bones, blood, head etc. and only when the child makes movements touching the internal walls of the womb, then the actual life does take its physical form, therefore, there may be controversy as regards the exact date of life entering the foetus but there cannot be any controversy as regards the life of the unborn child if a woman is carrying seven months pregnancy, as in many instances premature delivery takes place during the seventh month of pregnancy and the child still survives.  Foetus is another life in the woman and it comes as a baby in the course of time. Though foetus grows in the body of the woman, it cannot be equated to or considered to be a part of the body of the woman. In effect, loss of the foetus consequent upon the death of the pregnant woman is actually loss of a child in the offing for the husband of the woman.  An unborn child aged five months onwards in the mother’s womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a ‘person’ who can be the subject of an action for damages for his death. As already stated above a person means a human being regarded as an individual and an individual’s body: concealed on his person’5. Therefore, human foetus to which personhood could be attributed was also destroyed in the accident in the instant case; had the accident not occurred the unborn child would have survived and seen the light of the day. In Moore v. Wingfield,6 Justice Vaughan Williams L.J. held that in Blackstone’s Commentaries, (4th ed. vol.1, 129, 130) it is stated that in contemplation of law life begins as soon as an infant is able to stir in the mother’s womb: “For if a woman is quick with child, and by a portion, or otherwise, killed it in her womb; or if any one beat her, whereby the child death in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter.  According to Black’s Law Dictionary7, ‘unborn child’ means a child not yet born, esp. at the happening of some event.  Legal Status of Unborn Child The legal status of unborn persons is discussed in Salmond on Jurisprudence8, the relevant portion of which reads as follows :  “Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. ....  A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth”. Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities.”  Biswas, A.R, in his Book on Jurisprudence express the same view. The relevant portion of which reads as follows9 :  “A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim ‘nasciturus pro jam nato habetur’……   ….. in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of the acquisition of property by the child itself, or being a life chosen to form part of the period in the rule against perpetuities.”  Black’s Law Dictionary10 refers to “rights of unborn child”, thus: “The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death.  Judicial Decisions on the Rights of Unborn Child In Elliot v. Lord Joicey and Ors.11, it was held that an unborn child is taken care of just as much as if it were in existence, in any case in which the child’s own advantage comes in question; though no one else can derive any benefit through the child before its birth. In A.C, Re12, it was held by the court that the state has an important and legitimate interest in protecting the potentiality of human life, when the foetus has become viable. It had also been acknowledged earlier in Roe v. Wade13 that State’s interest in potential human life becomes compelling at a point of viability. This is a situation, which exists when a woman has carried an unborn child to viability, and when the unborn child reaches this stage the child becomes a party whose interest must be considered. A similar approach has been adopted by the courts in Fowler v. Woodward14 and more recently in Whitner v. South Carolina15 . In all these cases it was opined that ‘viable foetuses’ are ‘persons’ in the eyes of law, certain legal rights and privileges and exclusion of viable foetus from status of person would be an “unsound, illogical and unjust”. It was unanimously held that a foetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person.  After the perusal of the above-mentioned cases, it would be safe to conclude that a foetus has the legal status of a fully born person in the eyes of law. And therefore State’s interest in protecting the life and health of the viable foetus is not merely legitimate but compelling16.   The question before us is, what is the capacity of an unborn child to sue for injuries caused to it before its birth. This question was decided by the Irish Court in Walker v. Great Northern Railway Company of Ireland.17 In this case the plaintiff, a child sued the Railway Company for damages on the ground that he had been born crippled and deformed because the injury was caused to it by an accident due to railways negligence when the plaintiff’s pregnant mother travelled on the defendant’s railway. It was held that the defendants were not liable for two reasons :  The defendant’s did not owe any duty or care to the plaintiff as they did not know about his existence; and The medical evidence to prove the plaintiff’s claim was very uncertain. However, the Supreme Court of Canada has allowed the claim on behalf of a child for injuries caused to it before its birth in Montreal Tramways v. Leville18. In this case a pregnant woman was injured while getting down from a tramcar on account of the negligence of its driver. Two months later she gave birth to child club feet. An action was brought on behalf of the child claiming damages and the court allowed £ 500 to the plaintiff. Lamont, J. said: “if right of action be denied to the child it would be compelled without any fault on its own to go through life carrying seal of another’s fault and bearing a very burden of infirmity and inconvenience without any compensation therefore.”  In USA, most of the American Courts19, until Second World War, denied recovery of damages in tort to child who had been injured by negligent injury caused to its mother while she carried it. The important reason for denying recovery of damages was that the unborn child was a part of the mother at the time of injury. In this case a child sued the defendant for injuries sustained before his birth. The defendants had wrongly diagnosed the pregnancy of the plaintiff’s mother as tumour of the uterus and applied X-ray to destroy supposed tumour. In consequence, the plaintiff was born crippled and feeble minded. In this case the defendants were held not liable by the court saying that there is no remedy for prenatal injuries unless statute confers such rights.  However, after Second World War, American Courts20 allowed damages in tort to the unborn child who was disabled by negligent injury caused to its mother. In this case an unborn child was recognized as a ‘human being.’ Supreme Court of Australia in Watt v. Rama21, held that a child who was injured before his birth as a result of highway accident involving its mother was entitled in recover damages from the wrongdoer.  Duty to Unborn In England the position of the unborn child has been made clear by the legislation. In England Law Commission on ‘injuries to unborn children’ was constituted. On the recommendation of the Law Commission, Congenital Disabilities (Civil Liability) Act, 1976 has been passed. Whether a duty of care was owed to a child damaged by another’s negligence before its birth remained unresolved at common law until 1992. In Burton v. Islington Health Authority22 the Court of Appeal finally held that a duty is owed to the unborn child, but that the duty does not crystallize until the live birth of the child. Prior to that decision, however, Parliament had intervened in the form of the Congenital Disabilities (Civil Liability) Act 1976.This Act recognizes claim of the unborn child born disabled due to negligence of the others.  The important features of the Act are :  An action only lies its the child is born alive and disabled, Damages for the loss of expectation of life of such a child can be claimed, provided the child lives for at least 48 hours after his birth, The liability to the child arises if the defendant was under an actual or potential tort liability to either parent of the child for the act or omission which led to the disability, The Act permits an action not only for an injury to a child in the mother’s womb, but also for acts prior to that, An action for injury to the child is permitted even against child’s mother if the harm to the child is caused when she is guilty of negligent driving of a motor vehicle. Thus, the mother owes the child a duty to drive carefully. The fact that mothers can solely be held liable for harming their unborn children in the case of negligent driving and not in cases involving e.g., substance abuse during pregnancy is reasoned by legal scholars as stemming from the utility of the purpose. As such, the common law rule in Burton, so far as it is superseded by the 1976 Act, applies only in relation to children born before 1976. Before the Act was passed there was uncertainty in common law whether regarding the issue if a child can take action for pre-natal injuries.  Whether a duty of care was owed to child damaged by another’s negligence before its birth remained unresolved at common law until 1992. In Burton v. Islington Health Authority23 the court of Appeal finally held that a duty is owed to the unborn child, but that the duty does not crystallize until the live birth of the child. Prior to that, however, Parliament had intervened in the form of the Congenital Disabilities (Civil Liability) Act, 1976. There it is provided that a child who is born alive but disabled as a result of an occurrence before its birth may in certain circumstances have a cause of action against the person responsible for that occurrence. Now surprisingly, mothers are expressly immune from general liability under the said Act. How could a mother damaging her baby by smoking or drinking too much be in breach of a duty to herself? Would she be in breach of a duty to the father in damaging his child? A woman may be liable for damage to her child inflicted by her negligent driving of a motor vehicle when she knows or ought to know herself to be pregnant. The reasoning behind such material liability is probably that, in such circumstances, her insures will meet the cost of the child’s claim.  In the Divisional Controller, B.T.S. Division, Karnataka State Road Transport Corporation v. Vidya Shindhe24, the Karnataka High Court held that if the foetus has completed 37 weeks, for all purposes even the still-born child has to be considered as child. In Bhawaribai v. New India Assurance Co. Ltd.25, the Karnataka High Court held that in the case of abortion and death of foetus in the womb should be considered on par with the case of a death of a minor. In another case26, the Delhi High Court held that the stillborn baby is also to be considered as a child. An unborn child aged five months onwards in the mother’s womb till its birth can be treated as equal to a child in existence. The unborn child to whom the live birth never comes can be held to be a ‘person’ who can be the subject of an action for damages for his death. In Oriental Insurance Co. Ltd. v. Santhilal Patal27, the Andhra Pradesh High Court held that an unborn child aged five months onwards in the mother’s womb till its birth can be treated as a child in existence. The unborn child to whom the live birth never comes can be held to be a ‘person’ who can be the subject of an action for damages for his death.  The view taken in Firm huni Lal Rali Ram v. Altaf ul Rahman28, was different, wherein it was held that although under certain system of law, such as Hindu law, a child en ventre sa mere is by a legal fiction and for certain purposes considered to be born in the sense that he has a right of inheritance in his father’s property, such a fiction does not govern the rule laid down by the law of limitation. It was further held that under the law of limitation, minority begins at the date of birth and not at the date of conception.  Laws Relating to Unborn Child The rights of an unborn child are well recognized in various different legal contexts which are as under:  Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:  “Explanation: For the purposes of this section, ‘minor’ includes a child in the womb.”  Section 20 of the Hindu Succession Act, 1956 recognizes the rights of a child in the womb. Section 20 reads thus: “Section 20. Right of child in womb: A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.”  Mulla on Hindu Law, Fifteenth Edition, contains a commentary by the author while dealing with Section 20. The commentary reads thus: “It is by fiction or indulgence of the law that the rights of a child born justo matrimonio are regarded by reference to the moment of conception and not of birth and the unborn child in the womb if born alive is treated as actually born for the purpose of conferring on him benefits of inheritance. The child in embryo is treated as in esse for various purposes when it is for his benefit to be so treated. This view is not peculiar to the ancient Hindu law but one which is adopted by all mature systems of jurisprudence. This section recognizes that rule of beneficent indulgence and the child in utero although subsequently born is to be deemed to be born before the death of the intestate and inheritance is to be deemed to vest in the child with effect from the date of the death of the intestate.”  In the Indian Succession Act, 1925, ‘minor’ is defined under Section 2(e), which reads as follows: “Section(2)(e) “minor” means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and “minority” means the status of any such person;” Sections 13 and 20 of the Transfer of Property Act deal with situations in which on a transfer of property, an interest therein is created for the benefit of a person not in existence. As per Section 20, where on a transfer of property an interest therein is created for an unborn person, he acquires on his birth, a vested interest. Sections 312 to 316 of the Indian Penal Code provide for punishment for the offence of miscarriage; for doing any act with intent to prevent child being born alive; for causing death of quick unborn child by act amounting to culpable homicide etc. In India there is no existing enactment for the minor in context of torts. But we have a provision in criminal law that a child of less than 7 years cannot be held liable for crime. Now, if we have a provision in criminal law, why not pass an act which keeps torts and minor in mind, knowing the fact that children are more prone to civil wrongs instead of committing crimes. In India a person of 18 years or above becomes major, but, if a guardian is appointed before that age or a property is taken under superintendence by the court then the age of majority is raised to 21. There is no minimum age for the existence of tortuous liability. A minor, can be very well sued like an adult, if the action committed by him is in contrast with the reasonable action expected from the child of that age in a particular situation. Under common law, age of majority was reduced to 18 from 21 after the introduction of Family Law Reform Act, 1969. Under the Hindu law the right of a child born subsequent to a partition to reopen the partition under certain circumstances is recognized. So is the case with the right to have a share set apart even when the child is in the womb. This is a peculiar incidence of the Hindu law which recognizes a right by birth to children in ancestral property.29 According to Hindu Law an unborn son is deemed to be in existence under that system for the purpose of protecting his rights after he is born. That this fiction of law is not of universal application is clear from the fact that there are well recognized exceptions to it, e.g., (1) an unborn son could not be given in adoption to another and (2) a person can adopt a son to himself although his wife is pregnant at that time this he would be entitled to do even if he was aware of the pregnancy of his wife at the time of the adoption. In Aswini Kumar Pan v. Parimal Debi30 it was held by Calcutta High Court that a child in the mother’s womb is deemed to be in existence, at least for purposes of inheritance, which alone are relevant here, and has thus a right to challenge any transaction, which affects its interest at the time. If so, it has a right of action or a cause of action in respect of the said transaction and is entitled to institute a suit upon the same and, as such a child, as aforesaid, cannot, under the Indian Majority Act, be held to be a major, it must be held to be a minor, that is, a person, suffering from disability, as contemplated in the aforesaid Section 6 of the Indian Limitation Act. There is nothing in the Indian Majority Act or in the Indian Limitation Act either, which conflicts with the view that a child in the mother’s womb is a person in existence and is a minor. Indeed, so far as this latter part is concerned, namely, that such a child, if it be a person in existence, must be a minor, the relevant statute (the Indian Majority Act) carries its own confirmation, as, obviously on the terms of Section 3 and/or Section 4 of the said Act, a person is a minor until he attains the relevant age of majority, be it eighteen or twenty one years, as the case may be, and as, so far as the theory of a child en ventre sa mere is concerned, if it otherwise applies to a particular case, as here, which is a case of inheritance, neither of the above two statutes would exclude it or render it inapplicable.”  Position of Unborn in India In modern times almost all countries have recognized the rights of unborn child to sue and recover damages from the wrongdoer for injuries caused to it before its birth. The future development of the country will depend on the attitude of the children. Therefore, children’s right should be protected to the maximum extent possible. They should not suffer and go without remedies for injuries. It is therefore submitted that there is an urgent need to have a legislation in India to protect the rights of an unborn child.  We have our own constitution and our own bodies to frame the laws/acts and execute them. Then, is it defensible to sit in a python posture and wait for some celestial power to bless us with the indigenous laws? No! Attempts should be made to frame the law appropriately keeping in mind under 18 populations. Torts is a non statutory law. Its domain can not be restricted by writing it down on the paper because of its infinite scope. But, those laws which can aid the marginalized sector of the legal society such as minors must be framed and executed. Like the CDA, 1976 framed by Englishmen, we can also come up with some new laws owing to the conditions of minors in India. Those laws may be on English lines. No objection to that! But, at least Parliament should come up with some logical official slip to make our provisions complete.  Conclusion On the flip side developing country of India have children who commit tort out of their impecunious circumstances. Here, the psychological aspect comes into play which needs to be sorted out by the high thinking people of the Republic. Therefore, it implies that grounds in torts for minors require regular upgrading with changing times. In India due to variety, we need variance in laws subject to different conditions. But the pre-requisite of variance via exceptions and qualifications in law is the framing of an undefined (which has flexibility) law according to prevailing conditions.  Conclusively, we recognize various conditions in which a minor can be sued or can sue. As discussed, a minor should be treated on the grounds of reasonability out of his age. This forms the crux of the whole point. It is certainly better if the law is comparatively lenient with the minors, because though in English law we have a condition that a minor can reimburse the damages in the later part of his life if he lacks assets to compensate at that time, but, in other common law countries and India there is no such enactment.

Author Name: Dr. Caesar Roy