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An Abstract of Ph. D.

Thesis titled

Legal Personality of
Unborn: a Jurisprudential
Analysis
Submitted by
Sunanda Bharti
Under Supervision of
Dr Poonam Saxena
Faculty of Law
University of Delhi
Delhi-110007

2013

CONTENTS OF ABSTRACT
Detailed Contents of the Thesis

Introduction

Problem, Related Literature and Objective

Hypothesis

Methodology

Limitation of study

Organisation of study

Bibliography

18

Detailed Contents of the Thesis


Preface
Acknowledgements
Table of Cases
Abbreviations
Chapter 1: Legal Personality of Unborn/Foetus*
A. Introduction

Legal Personality, a Maze

Unique Case of the Unborn

Debate Surrounding Personhood of Unborn

Before Roe versus Wade

B. The Legendary Case of Roe

Important Tort cases

Important Criminal Cases


Pollution Spread by Roe

Degree of Protection Accorded to Foetus

C. On Unprotected Status of the Unbornfrom injuries and


murder before viability

Personhood to be acknowledged before Birth

Social Recognition as mark of Separate Entity


Employing Legal Fictions
New issues on Foetus

On Abortion issue being Peripheral

Mothers Responsibility to Carry the Pregnancy Through

D. Conclusion

Chapter 2: Tort Law and Unborn: USA, UK and Indian Scenario


A. Legal Personality Begins at Birth

Traditional Stand on Pre-natal injuries and Foetal Standing

B. Tracing Development of Recovery Rule for Pre-natal Injuries

from Denial in early Cases to their Acceptance in Current Law

The Times of Non-liability: Trilogy of Dietrich-Walker-Allaire


The Stray case of Montreal Tramways

Progress since Bonbrest

Solidification of Viability and Live Birth as Conditions of

Viability as a Benchmark for Limiting Duty of Care

C. The Bane of Viability


Recompensability

Alternate Viewpoint on why Pre-natal injuries to be

Tide against Viability

Compensated for

Theories in the UK and USA on Recovery for Pre-Natal


Injuries

D. Associated Problems Concerning Recognition of Liability for


Pre-natal InjuriesThe Rise of Wrongful Death (WD) Cases

Viability in WD cases

Argument for maintaining WD Action in India

On Quantum of Compensation and Calculation


Need for WD Legislation

UK-Congenital Disabilities (Civil Liability) Act 1976


Rationale behind Recovery in WD cases

E. Emerging Areas in Tort Law--Wrongful Birth (WB) and


Wrongful Life (WL)

Chapter 3: Feasibility of Foetal Rights in Abortion Era; Possibility

of Prosecuting PW for foetal abuse

A. Foetal Rights in face of Abortion

Probability of Coexistence of Abortion and Foetal Rights

Demanding right of Abortion and Legal Personality for the


Unborn, whether Contradictory

B. Liability of Mother for Injury/Death to the Unborn

Civil Law of Torts

Re Pregnant Woman and WD

C. Re Whether WD should Cover Pre-Viable Foetuses

Criminal Law
UK Position

Indian Position

Chapter 4: Confinement of Pregnant Women for Protection of

Unborn

Introduction

Concept of Maternal Foetal Conflict

Confinement of Women for Protection of Foetuses


Ways of Regulating PWs Conduct
Legislative Intervention

Feminist Angle to the Problem

Rights Discourse whether ill Equipped to understand or

Foetal Abuse Laws Tricky to Formulate

Tackle the Problem:

Chapter 5: Criminal Law and Unborn: Introduction and USA/UK

Scenario

A. Introduction and Background

Current Scenario

Unborn Victims of Violence Act, 2004

Contribution of Courts

B. Legal Status in the US Criminal Law

C. Legal Status in the UK Criminal Law

Legislatures Contribution to Foetal Status in UK


 Offences against the Persons Act, 1861
 Abortion Act, 1967

 Infant Life Preservation Act, 1929


Chapter 6: Criminal Law and Unborn: Indian Scenario

Introduction

PART I: Medical Termination of Pregnancy Act, 1971

A. Legal Status of Foetus in Criminal Law in India

 Relevant Provisions Reproduced Verbatim

 Abortion Right should Remain Severely Regulated in


India

 Reforms Required in MTPA, 1971

 Need for additional grounds for termination

 Mental Retardation of PW and Foetal Rights

 Keeping Right of Abortion and Demanding Legal


Personality for Unborn, not Contradictory

 Other suggestions on reform

PART II

 Provisions relevant and relatable to the foetus under


IPC, 1860

 Loopholes in Criminal Law

PART III

 Pre-Conception and Pre-Natal Diagnostic Techniques


Act, 1994

B. Conclusion

Chapter 7: International Law (IL) and Unborn


A. Scope of the Chapter

Scope of IL vis-a vis the Unborn

I. International Instruments

B. International Law Instruments and Unborn

II. Regional treaties


Case-law

C. Conclusion

Title of the Thesis: Legal Personality of an Unborn: a


Jurisprudential Analysis

Name of the Scholar: Sunanda Bharti

Name of the Supervisor: Dr. Poonam Saxena

INTRODUCTION
The legal understanding of the concept of person or personality

revolves around possession of rights and capacity to discharge legal

duties. Hence, natural persons, that is, human beings are the prime
claimants of legal personality.

Legal personality of natural persons begins at birth and

extinguishes with death with the result that pre-birth, post death

stages are devoid of any legal persona.1 Understanding absence of

personality in the pre-birth stage (read foetal stage) poses problems


as the unborn being understood as incapable of exercising any legal

rights and not being duty bound towards anybody, gets a raw deal
when it comes to tortious acts committed towards it. There are

crimes committed against them that are not recognised as such and
hence make punishment impossible.2

For law, the problem is complicated by other disciplines like

theology and medicine maintaining the unborn to be living entity.

The problem is whether unborn foetuses or a child in the mothers

womb are legal persons or not? If personality begins only post birth,

would it be an exaggeration to say that an unborn is worse off in his


mothers wombsusceptible and doomed to suffer all assaults

without respite, till of course, it takes its place amongst the living! It

is the submission in this research that the answer is yes. As a


This is per general common understanding; though there is a strong
difference of opinion here too which may be taken as exceptions.
2 For instance, threatening to kill a foetus is no crime. Similarly, simple or
even grievous hurt (in-fact anything that falls short of causing miscarriage) is
not an offence qua the unborn).
1

general rule of law they are not legal persons though there are

exceptions, where the unborn is indeed given some modicum of legal

personality. Various aspects of this topic have been discussed in this

research modestly comparing the jurisprudence of USA, UK and


India in the regard.

PROBLEM, RELATED LITERATURE AND OBJECTIVE


Dearth of original legal research on the topic of legal personality of

unborn was the principle driving force behind writing on the aspect.
Throughout the research it was difficult to obtain hard copy written

material, which deals specifically with the proposed project. It is


hoped that the proposed research will fill this gap. It is also a modest

desire that the study proves useful to not only the academicians in
providing intellectual fodder, but also to lawmakers in formulating
laws pertaining to the rights of unborn.

In this regard, the present stand is vindicated by the observations

of noted jurists, judges and academicians of eminence whose views


have been quoted in this study.

A number of online materials were available revolving around the

aspect of legal personality and the theories of personality and the


same have also been relied upon in this research.

Another reason was the fallacies and misconceptions that are

prevalent amongst people about the correct legal status of a foetus;


most bizarre being the notion that a foetus is a person with rights

and dutiesthat it has the fundamental right to life and so on, while

the fact is that in most of the countries, a doctor can lawfully, by


statute do to a foetus what he cannot lawfully do to a person who

has been born3. This research is an endeavour to remove some

myths

and

highlight

certain

contradictions

and/or

mis-

interpretations which, over a period of time, have acquired the status


3

McKay v Essex Area Health Authority [1982] 2 AER 771 at 781. In India foetal
death is legally permissible under the circumstances prescribed in the Medical
Termination of Pregnancy Act, 1971.

of legally and morally correct view.


HYPOTHESIS
An unborn does not have any legal personality.
METHODOLOGY
The

methodology

adopted

for

this

research

was

non-

empirical/doctrinal comprising a systematic study and analyses of


published research (journals, books and online sources). An attempt

has been made to identify commonalities and differences in the

treatment of an unborn under the legal systems of the USA, UK and


India.

LIMITATION OF STUDY
Although this research has reached its aims and conclusions,

nonetheless it has its share of limitations and shortcomings.

First of all, the research was perforce spread over various laws as

there are many that touch upon the unborn tacitly or patently. It was
humanely

impossible

to

comprehensively

cover

each

in

the

comparative manner. Hence, the laws where the status of the unborn

is almost settled, such as laws of property and succession have not


been discussed in detail; they only find a peripheral mention. Laws of

Crime and Tort where there is immense scope of something radical


being accomplished for the foetus and its rights are primarily the
laws that form the core of the research.

Secondly, it was difficult to find books related to the subject, let

alone written on it. Most of the literature touched upon the issue of

abortion, which is very different from the present study topic.

Consequently, huge reliance had to be placed on medical/legal


journals and reports (online or otherwise) to cull out and articulate
arguments.

ORGANISATION OF STUDY
In order to provide a clear visualization and better understanding

of the topic of study, the entire work has been divided into seven (7)

chapters. For the sake of avoiding a hop scotch of ideas and


suggestions (because a number of laws across three nations are
being compared) suggestions for law reform required for India and

my conclusion has been discussed as a part of each chapter instead


of it being all at the end.

A brief introduction of each chapter follows:


Chapter 1: Legal Personality of Unborn/Foetus
On what basis are different entities subjects of law? A bare

perusal of the nature of some of them indicates that there is no


common thread running through them; that they are not identical in
nature or scope of their rights. In-fact, in India, an entity like a HUF

may be a person for taxation purposes, but is denied that legal


personality when it comes to entering into a partnership.4

Traditionally, per the Hohfeldian thesis, an entity is deemed to

have legal/juristic personality if it is amenable to the right-duty


correlation. A question that is relevant to answer in relation to
personality is-is there any parameter followed in granting the same?

The concept of legal personality has been puzzling and uncertain

since inception. Hence, the case-law regarding the same has also
been inconsistent. In 2001, the Harvard Law Review confirmed this
diagnosis and concluded that the law of the persons is fraught with

deep ambiguity and significant tension; that the definitional problem


of the person was likely to become more acute with technological

and economic progress; and further that the subject was so grossly
under-theorised that it merited more attention.5

Chapter 2: Tort Law and Unborn: USA, UK and Indian Scenario


* The term unborn and foetus, though technically different, have been used
synonymously in this research.
4 See Agarwal and Co v Commissioner of Income-Tax, U.P 1970 SCC(2) 48.
5 What we talk about when we talk about persons: The Language of Legal
Fiction (April 2001) 114(6) (notes) Harvard Law Review 1746, 1768.

10

This chapter explores the treatment meted out to the unborn in

the Tort Law of the three countries. It also discusses the impact of

the Born Alive Rule, which was the result of unsophisticated medical
knowledge and a high degree of pre-natal mortality. Primitive medical

technology made it impossible to establish that a foetus was alive


until it was born.

The impossibility of determining whether and when a foetus was

living and when and how it died led to the difficulty of ascertaining
whether a defendants misconduct was the cause of a foetus death.6

This is the main reason why pre-natal tortious injuries suffered by

an unborn were not recognised as a civil wrong.

Presently the medical and forensic science situation has changed

drastically by making it possible to determine with almost pointed

accuracy as to what caused the injury, when the deformity, if any,


set in and why or what was the cause of death. The author maintains

that law should translate the above development into granting legal
personality to the unborn from conception itself.

The chapter also elaborates upon the emerging areas of Tort law

that touch upon the unborn. Cases of wrongful death, wrongful life

and wrongful birth are new areas where new tort laws are emerging.

Courts have been grappling with a number of issues that were


hitherto unheard of for instance, right of action by the unborn

against the mother for failure to provide a healthy womb (say when

PW is a drug addict, an alcoholic etc); the right of action against the

mother for a botched self-abortion attempt resulting in temporary or

permanent disability of the child; or the right of action against the


attending physician for negligence.

Towards the end it is suggested that India should have a specific

Unborn Wrongful Death Act to permit wrongful death claims for the

death of an unborn child at any stage of development or gestation


Mamta K. Shah, Inconsistencies in the Legal Status of an Unborn Child:
Recognition of a Foetus as Potential Life (Spring 2001) 931, 937-38.
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and even for in-utero wrongful deaths.7 This would place India not
only at par with the most advanced countries of the world, but also

introduce a change in one of the basic tenets of Tort law-survival of


cause of action post the victims death. The tortfeasor (wrongdoer)
would not be able to escape liability merely because he inflicted

injuries so severe that they resulted in the death of his victim in

utero. It would also mark as a watershed development for it would


mean acknowledgement of foetus as a legal person.

Chapter 3: Feasibility of Foetal Rights in Abortion Era; Possibility

of Prosecuting PW for foetal abuse

This chapter, amongst other things, elaborates on how it is not

hypocritical to advocate for foetal rights and personhood from the


time of conception on one hand and supporting abortion on the

other. For instance (and many such instances have been mentioned)

if the mother herself, being the host, is unwilling to carry on with the

pregnancy, there is absolutely no reason why the State should thrust


it upon her to carry it till full term. Such extreme detachment of the

mother from the unborn merits that foetal right to life be treated on a
lower footing than life of the expecting mother. Though foetus should

have a right to life, it must be life with dignity, a meaningful,


wholesome life which would not be possible if the mother herself has

not been able to form any emotional bonding with the foetus/would

be child. Here it is suggested that attempts must be made to provide


therapy and consultation to the PW to persuade her to keep the
baby.

The second half of the chapter probes into the possibility of

prosecuting PW for foetal abuse leading to wrongful deaths (WDs).

Though pregnant women have been conventionally kept immune

from WD claims, there is no reason why, in proper cases, the mother

This would effectively do away with viability and also the requirement of
live birth for WD claims.
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should be excluded from being liable for the said death.8 In fact in

repeated cases of substance abuse9 that results in death of the


foetus, it should be employed to set an example. Also, if the State can
do as much as to enter a very private domain of depriving the mother

a choice of whether she should keep the child or not, for several

reasons10, the State can very well regulate the pregnancy further, in

order to protect potential life and its rights.

Chapter 4: Confinement of Pregnant Women for Protection of

Unborn

As per Rosamund Scott, maternal foetal conflict concerns two

main senses in which a PW may cause pre-natal harm. First, she

may refuse medical treatment, caesarean or other surgery...Second,

aspect of her daily life may be detrimental to the well-being of her


unborn child such as smoking, consumption of alcohol or drug
taking or for that matter failure to take care in crossing a road.11

The conflict between the rights of women and unborn take an ugly

turn when one speaks of confinement of women for protection of

their foetuses. The very thought seems perverse because we delve


into the negative aspect of the rights discourserights are in modern

times used as weapon to correct moral depravity. The relationship

between the mother and her foetus, particularly the aspect of


maternal care towards the unborn is more a matter of course than

8 Though, in such cases extra care would have to be taken to differentiate


accidental deaths from grossly negligent deaths.
9 The World Health Organisation (WHO) defines Substance Abuse as: the
harmful or hazardous use of psychoactive substances, including alcohol and
illicit drugs.
10 For instance in India, apart from numerous holistic and religious
reasons, prevention of sex selective abortions is one of the major concerns
why abortion has not been given a free way. Despite protests and demands
from pro-choice feminist circles, abortion remains heavily regulated and
circumscribed through the Medical Termination of Pregnancy Act, 1971.
Hence, India is by and large a pro life country more by compulsion of societal
and religious dogmas and practices than by choice. In the USA and the UK,
though abortion laws are lenient than that of India, there are regulations
pertaining the same; it is not a lawless issue.
11 Rosamund Scott, Rights, Duties and the Body: Law and Ethics of the
Maternal Foetal Conflict (2002) 35 Hart Publishing 14.

13

rights. Thus, in case of PW-foetal relationship, what essentially was

a part of maternal responsibility and innate to motherhood12 gets

reduced to rights and becomes a matter of legal duty rather than a


moral responsibility.

From the moral-philosophical perspective, it may be viewed as a

debasement of the relationship from both sides--the mother refuses


to alter her lifestyle of addiction for the sake of the unborn upon
which the latter is up in arms against the former with the charge of
abuse.

This chapter maintains that the rights discourse is ill equipped to

understand the problem, as law cannot be perceived as the panacea


of all ills.

Chapter 5: Criminal Law and Unborn: Introduction and USA/UK


Scenario

This chapter analyses the status of the unborn in Criminal Law

and seeks to answer certain basic questions such as whether a baby


who is born alive but dies some time afterwards from a pre-natal

injury, has any respite under Criminal Law (more specifically

whether it can be a victim of homicide). If yes, whether viability plays


a role in inculpating the perpetrator or whether injuries inflicted in
the pre-viable stage also merit retribution.

In the USA, because of the efforts of the Judiciary and also the

Legislature13, the tendency towards recognising foetal rights in the

arena of Criminal Law has seen an upward trend. The federal


Unborn Victims of Violence Act 2004 (UVVA, 2004) (more commonly

known as Laci and Conners Law14) recognize an unborn child as a


As automatic care for the entity in the womb.
The Unborn Victims of Violence Act 2004 was enacted by the Legislature
amending Title 18 of the United States Code by inserting a new Chapter--90A
that entails section 1841 protection to unborn children.
14 The unique name comes from the names of the victims--a pregnant Laci
Peterson of California who was eight months pregnant with a son who was to
be named Conner. She was murdered in 2002 by her husband, Scott
Peterson, in that pregnant stage.
12
13

14

separate victim of criminal violence and treat the killing of an unborn


child as a form of homicide.

Criminal Law of the UK does bestow some protection to the foetus,

but it does so only vaguely and coincidentally and not cogently and
directly.15 Most of the times, its regard for the foetus is to protect it
through the PW, as her adjunct. The focus is on the requirement of

being born alive. Normally, the aspect of viability or quickening

(crudely speaking) is also added as a criterion to ascertain the

offenders liability. Meaning, any pre-natal injury to the foetus would


be a criminal offence only after it has attained viability and provided
it is born alive. Once this happens, even if it dies after one miniscule

second, the requirement of Criminal Law to inculpate the offender

would be satisfied. Conversely, there would be no crime committed


under Criminal Law if the injury happens before viability or if the

injury happens after viability but the pregnancy does not result in
live birth (it is stillborn).

Chapter 6: Criminal Law and Unborn: Indian Scenario


The chapter attempts to appreciate the legal position of the

unborn in three Indian legislations viz. the Medical Termination of

Pregnancy Act, 1971 (MTPA, 1971), Indian Penal Code 1860 and the
Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994

(PCPNDT 1994) in that order. The last legislation has been briefly
mentioned.

accordingly.

The

chapter

has

been

divided

into

three

parts

This thesis seeks to establish that in order to acknowledge foetal

personality in Criminal Laws, it is necessary to criminalize that

conduct which injures or causes death of an unborn child so that the


unborn gets protection from conception until birth. In the Indian

With the exception of WD, the position in the UK is clear under civil law-the foetus is not a person until it has achieved live birth: see, for example,
Paton v British Pregnancy Advisory Service Trustees [1979] Q.B. 276. The
situation is not so clear however in Criminal Law. Though the law is
developing towards a concrete stand ever since Attorney Generals Reference.
15

15

context, it translates into amending the IPC, 186016 to include

culpable homicide, murder, all kinds of hurt etc and attempts thereof

as applicable to the unborn. This may be effectuated by specifically


mentioning that the term person in the Code includes an unborn
child at every stage of gestation from conception until birth.

After going through the various provisions of law revolving around

the foetus in India, four stems that can be easily identified where the

Criminal Law, whether it is a general Criminal Code17 or a specific

criminal law18 does not come to the rescue (though it does so for an

adult). They are:

(1) it is definitely not an offence to threaten to kill a foetus,

(2) it is not necessarily an offence to injure a foetus19,

(3) it is not necessarily an offence to kill a foetus.20 This is subject to the


qualification of legal abortions.21

(4) it remains arguable whether it is a criminal offence to cause the


foetus injuries from which it dies after being born alive.22

Particularly Chapter 16 dealing with offences against the human body.


That is the IPC, 1860.
18 Like the MTPA, 1971 in India or the Abortion Act, 1967 of the UK.
19 Unless the injury is done with intent to procure a miscarriage...see
details later...At this point, it must be mentioned and underscored that in this
segment the author is not dealing with civil liabilities/tort action that may
arise in case of pre-natal injury to the foetus. The probe here is whether the
Criminal Law declares it to be an offence or not.
20 Sections 312 (causing miscarriage), 313 (causing miscarriage without
womans consent)-315 (preventing the child from being born alive or causing
it to die after birth), and 316 (causing death of quick unborn child) do provide
some instances which offer some protection to the unborn by providing for
some punishment to the perpetrator in some instances. In the UK some
protection is offered by the Offences Against the Person Act 1861, ss 58 and
59 (unlawfully procuring a miscarriage) and Infant Life Preservation Act 1929,
s 1 (child destruction). The USA is on a different footing especially ever since
the passing of the UVVA, 2004.
21 This is not the same as on demand but is meant to cover limited
abortion rights of the type recognized in the Abortion Act 1967 (as amended
by the Human Fertilisation and Embryology Act 1990), the precondition for
which is that the woman requests/agrees. The thought that a foetus might be
aborted contrary to the womans wishes (for example, on eugenic grounds)
would probably be regarded as repugnant by most women and men.
22 Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens & Sons
Ltd 1983) 289. The matter still remains arguable.
16
17

16

Chapter 7: International Law (IL) and Unborn


The chapter investigates briefly whether International Law

protects the unborn child, meaning whether it has been treated as an


independent entity, whether live birth, viability etc are also a
requirement in the international scenario or whether in utero stage is

protected from assaults and death.


CONCLUSION

The work of this thesis primarily was conceptual analysis of

whether an unborn is a legal person or not. A part of the conclusion

derived is that there is an aura of strange vagueness and


discomfiture (in the Legislature and Judiciary of India and the UK, if

not the USA) surrounding the question making it difficult to arrive at

a logical conclusion. Nonetheless, the author maintains that a


conclusive decision regarding the same is not only necessary but of
immense practical importance because it would decide the ways in

which and the degree to which, law would interact and protect the
unborn, if at all.

In case of India specifically, it may be noted that hoards of policies

and schemes for the welfare of PW and unborn/newborn are

conceptualised and implemented by the government23. The intention

behind such schemes is to ensure protection to the PW so that she is


able to carry her child to term in a safe and healthy environment. As

a natural culmination of this effort, it is only logical that not only the

PW but also the unborn be legally protected, and perpetrators of

crimes/torts against unborn children be held accountable for their


acts in law.

For instance the Janani-Shishu Suraksha Karyakram (JSSK), Mamata,


in Orissa for the welfare of PW and newborns.
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17

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26

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27