You are on page 1of 52


Mother and Childa very sensitive, touchy and the best relation in the world. A lady becomes a mother not the moment when she gives birth but the moment she conceives. One day somebody asked, God, how can you be so relaxed at your creation he replied that he had created Mother for taking care of the rest? Thus, we realize that the embryo developing into a foetus is as much human as we all are. It is a being a living being. Foetus as is generally known is derived from the Latin Word Fetus meaning offspring, bringing forth, hatching of young. It is a developing human from usually 2 months after conception to birth. An unborn baby from the eighth week after fertilization until delivery. It is the unborn child developing in the uterus. It is a human embryo in the mothers embryo. There is a huge controversy regarding the rights of a foetus. Some laws seek to protect a otherwise recognize the foetus. Some of these grant recognition under specific conditions. The foetus can legally be (i) a victim of a crime such as feticide, (ii) a beneficiary of insurance, (iii) an inheritor of property. The Unborn Victims of Violence Act is United States laws, which define violent assault, committed against pregnant women as being or crime against 2 persons the woman and the foetus she carries.

Iranian law holds that anyone who brings about miscarriage must pay a monetary five, which varies depending upon the stage of development on sex of the fetus, as compensation. Legislative measures sometimes seek to establish the right to life of the foetus from the moment of fertilization. Such laws regard the fetus as person whose legal status at par with only other home-sapiens. 1.The 1978 American Convention on Human Rights states in Article 4.1 Every person has the right to have his life respected. This life shall be protected by law and in general from the moment of conception. 2.In 1983, the Eighth Amendment of the Constitution of Ireland, also known as the Pro-life Amendment was added to the constitution of the Republic of Ireland. It recognizes the right to life of the unborn. 3.In 1993, the Federal Constitutional Court of Germany held that the constitution guaranteed the right to life from conception and discouraged termination & to protect the unborn life. Many stated have issued initiatives prompted by concern for the illeffects which right be posed to the health or development of a fetus seeking to restrict/discourage women from engaging in certain behaviors while pregnant. Laws have been passed to restrict practice of abortion based upon the gender of foetus. The Pre-Conception and Pre-Natal Diagnostics Techniques (Prohibition of sex Selection) Act 2003 is a landmark legislation in India

recognizing the rights of an unborn female child, India being a maledominated society. The medical Termination of Pregnancy Act, 1971, has legalized abortion but, only in specific cases. The recent case of Harshal Mehta has set the legislatures thinking on modification of the Act. Its always said that a girl is born incomplete becomes half complete of marriage but becomes a complete woman on giving birth. Thus, the rights of fetus have existed for centuries and will continue to exist, expand and be modified with the passage of time. The right to sue inherits, not to be harmed by drugs and the right to bring a test action. The zone is being widened. All religious be it Hinduism, Islam, Christianias or Buddhism have always discouraged abortion as it is believed that you have no right to take what you cannot give, meaning we have no right to kill a person as we cannot create one. The proprietor of this right is exclusively the creator!

WHO IS FOETUS? Foetus means a human organism during the period of its development beginning of the fifty, seventy day following fertilization or certain (excluding any time in which its development has been suspended) and ending at the birth. WHO IS PERSON? According to section 11 of the Indian Penal Code, the word person includes any company or Association or body of persons, whether incorporated or not.

IS THE CHILD IN WOMB ALIVE OR NOT The American S.C for the first time in Roe V. wade (1973), recognized womens right to terminate her pregnancy. S.C America held that a womans right to terminate her pregnancy is such that the state may not prohibit abortion if until the foetus reaches viability. In the Land mark judgment Webster V. Reproduction health services (1989), the S.C of America reversed its earlier judgment and upheld Missouri Statute which declared that the life of each human being begings at conception, and that unborn children have protect able interest in life, health and well-being prior to it in the case of roe V. Wade, it was held by the same court that the foetus had no protectable interest until it had reached viability. It is meant by that the foetus was assumed alive after the date viability, prior the Webster case. Now it was assumed alive from the date of conception. Thus, the American S.C recognized the right of foetus to grow born

A child in its mothers worm womb is for many purpose regarded by a legal fiction as already born, In accordance with the maxim, Nacsciturus pro jam nato habitu . In the words of coke-the law in many cases has consideration of him in respect of apparent expectation of his birth (Qui in utero sunt in toto paene jure civili intelleguntur in rerum natura esse)thus in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purpose of (1) acquisition of the property by the child itself or (2) Being a life chosen to from pert of the period in the rule against perpetuities.

STATUS OF FOETUS It is well known fact that the age of the child is counted from the birth of the child, moreover Indian, penal Code defines, man as male human being of any age and women of female human being of any age. The unborn person is not defined or concluded while defining person under IPC (Indian Penal Code) as well as Indian Constitution. More over, what status does the unborn child enjoy in the light of latest population policy adopted by the Government? Under the Hindu Law, the presumption is that a child comes into existence at the time of its conception. Privy council in the case of Tagor V. Tagor observed that as a general rule adopted in the jurisprudence the is clause would include children is embryo, who afterwards came into existence as entity. A child in mothers womb is considered to be living entity within its own entity. Bupen N. Mukherjee has summed up that the constitutional protection of unborn children considered the imagined right of all foetuses, to be born,(imagined because who say that for some foetuses, at least, the imposition of birth would be a burden). Since abortion has been legalized under Medical Termination of Pregnancy Act on certain grounds subject to the length of the pregnancy. Now the question arises can an unborn child claim the right to life and liberty as e4njoued be other person under Indian Constitution (Article

21). The fundamental right provided under the Indian Constitution is the counterparts of the American Constitution. The code has not defined the term person in a narrow and technical sense but has give a wider meaning to the term to include both natural person (a human being, whether a man or woman and an artificial person. An unborn child (i.e. foetus) in the mothers womb is a person for the purpose of section 11of the code.

CONSTITUTIONAL VALIDITY: Abortion was legalized in 1971 after a 1965 UN Mission to India recommended this step to strengthen the population policy. And the shantilala shah committee, Report of 1966 also advocated it to reduce the number of illegal and unsafe abortion that were prevalent. Although the started reasons for passing the M.T.P. Act were humanitarian health related and eugenic there was a strong population control motivation underling the passage of the Act. Amniocentesis techniques ultrasonograpy etc for detecting foetal abnormalities these test could detect the sex of the foetus also most of people who learned that their expected child was female, went on to have an abortion In 1870 female infanticide has come to replace female infanticide demonstrating that social attitude to the birth of a female child has not changed. The constitutional validity of the sex determination followed by abortion is very much in doubt. In law, an unborn baby can be considered a person with in the meaning of Articles 14-15 to 21 of the Indian constitution. Article -14: The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15:

Prohibition of discrimination on grounds of religion, race, caste sex or place of birth. Article-15(3): Nothing in this article shall prevent the State from making any special provision for women and children. Article -21: No person shall be deprived of his life and personal liberty except according to procedure established by law. As per above the mentioned (constitutional) Indian laws an unborn baby can be considered as a person, hence U/A -14 the right to equality before law and equal protection of law are also available & granted to them by Indian constitution. So a Unborn child has all the rights as if it would have been as a person on this earth. As per article 21 every person has right to life and personal liberty , it means an unborn child has every right to life and personal liberty and we can say he has so man rights such as : 1. Right to inherit 2. Bring an action when born for strong full diminution of life (in representative manner) 3. Bring an action for damage caused to the child in the womb 4. Right to be born. Along with this a-15 (3) empower the Govt to make special rules in favour of women and children. Which give it more constitutional validity

Apart from these A-21 also provides that all those right may be denied with the due procedure established by law. It means if the provisions of M.T.P Act. And other related laws are followed in respect it is permissible valid and allowed under the Indian Laws. The right to an abortion is essential to a woman to ensure her control over e reproductive process to decide whether or not she wants to child a decision that is taken regardless of the sex of the unborn child. Apart from constitutional law the Indian penal code also provides certain provision for the regulation of illegal termination of pregnancy Under sections 312 to 316.


INDIAN PENAL CODE: SEC: 312 This section makes voluntarily causing miscarriage an offence in two situations. Normally when a women is with a child and is quick with child as per judicial interpretation a women is consider to be in the farmer situation as soon as gestation begins and in the latter situation when the muter is felt by the mother. It refers to an advanced stage of pregnancy. Think in to account the nature and gravity of the latter case section has prescribed punishment in the from of improvement of either description which ma extend to three years or wit fine or with boot punished with seven ears and shall also be table to fine. The offender could be a women herself or only other person. As early as 1886 a woman was changed for causing her to miscarry, trough the headmen pregnant for only one month. The person who aids and facilities a miscarriage gee is liable, for the abetment of the offence of miscarriage U/S-312, read with S-109 of the I.P.C even though is also liable for attempt to commit a criminal abortion U/S-312 read with section 511 even if he fails in the endeavor for free offence. Sec: 315 Section 315 makes any act done with intent to prevent a child from being born alive or cause it to die after birth punishable with imprisonment


which may extended to 10 years of either description i.e. simple or with fine or with both unless the act. If done in good fait for the purpose of saving the life of the mother, the offence is cognizable by the court of sessions. Sec:316 Section 316 reads as causing death of quick unborn child by act amounting to culpable homicide punishable with imprisonment which may extend to 10 years, and shall also be liable to fine.

Old Hindu LawA gift or bequest in favor of unborn was void- Sri Raja Tenkauta Vs. Sri Rajha Smawni 1908. However, this has been modified by the statute- THE Disposition of Property Act, 1916, which validates the gift & unborn person. Hindu law allow in favor of unborn person. Mohammedan law: Not applicable /doesnt recognize it. Abdul Cardur Vs. Tunner Lory. A gift to unborn a person net is existence is void except in case of a waqt. Jurisprudence: Legal status of unborn person The unborn person has a legal personality & possesses legal rights & duties. But his legal status is contingent.



The answer of this question is cleared by the case Bonbrest V.Kotz, prior to this case the foetus was not said distinct personality but as a pert of mothers body but in this case an unborn child was recognized as a human being.

THE CONGENTAL DISABILITIES (CIVIL LIABILITY) ACT 1976: The said act, gives the right to the foetus in some circumstances, which applies to all births on or after July 22 in that year. The principal provisions of the Act may summarized as followsIn the last place, an action only lies if the child the claimant is born and disabled. Secondly, liability to the child is derivative, in other words it only arises if the dependent was under an actual or potential tort liability. Thus if a pregnant woman takes a drug which has been manufactured or developed negligently or in circumstances which contravene the consumer protection act 1987 and this causes her child to be born disabled. The child may recover damages from the manufacture even through the mother suffers no injury herself from the drug.
Sec.2of the Act, accordingly provides that a women driving a motor vehicle when she knows or ought to know herself to be pregnant is to be regret as under a duty of care towards her un born child.


According to human rights: human rights are those rights, which should be available to every individual with out any discrimination of any kind. Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom. The most important right of a human is the right of life. It is the supreme human right from which no derogation is permitted. It is inalienable. The article 6(1) of the international Covent on civil and political rights prohibits the arbitrary deprivation of life. But there are some controversial issues related. One such issue is the question of right to abortion. Among other rights of women, is it beloved that every mother has a right to abortion, it is universal right. But the right of the mother is to be balanced which the right of the unborn. Earlier the right of abortion was not permitted and it was strongly opposed by the society. The termination of pregnancy was termed to be a murder of the future. But due to the change in time and technology, now days this right has been legally sanctioned by most of the mentions after the famous decision or Roe Vs Wade by the US Supreme Court. But the oppositions are still present and people do deli eve that it should be legally prohibited. The request which is the reason for this discussion is-whether a mother has a right to abortion vis a vis the right to life of the unborn what are the international which sanction the right to abortion. What is the stand of India on this?


What is abortion? Abortion is the deliberate distraction of an unborn child, usually by existing or expelling the embryo or fetus from the womb. Legally, abortion (miscarriage) means the premature expulsion of the foetus from the mothers womb at any time of pregnancy, before full term of pregnancy is completed. Classification: (1) Natural: (a) Spontaneous. (b) Accidental. (2) Artificial: (a) Justifiable. (b) Criminal.

When is abortion performed? In Britain most abortion are performed in the first third of pregnancy although it is legal up to birth on some grinds including the risk of foetal disability. The law on abortion was passed in 1990 The overwhelming majority of abortions are carried out under the pressure of social circumstance rather than for medical reasons. How many registered abortions take place? Between 1968 and 2003 nearly 6 million legal abortions were performed in Britain.200.000 abortions in Britain each year (187,000 in England and Wales and 12,000 in Scotland). That amounts to about 550 abortions ever day. What method of abortion is use in Britain?


Some of the methods of abortion are use in Britain include the RU486 chemical abortions pill, aspiration (suction abortions) and D&C and D&E abortions. Suction abortions are the commonest technique in England and Wales. The most commonly used in Scotland are the RU486 chemical abortion (49.8%of all procedures) and the section abortion. What is post abortion trauma (PAT)? PAT is a form of post-Traumatic stress Disorder. It is the grief, guilt and anger associated with the loss of a child through the mothers abortion. Research indicates tat at least 10% of women who have an abortion will suffer from PTA at some time in their lives

Abortion: Ethical or not? The introduction of legal abortion is Britain means that the right to life of the human embryo and foetus is denied. Scientists agree that once the sperm has fertilized the egg. A new being with a fully human genetic make up has been created. However, in abortions the humanity of the unborn child is either rejected or ignored. Abortion for foetal disability does not prevent disability but instead prevents children with disabilities from being born.


When a pregnancy is UN wanted it often leads to abortion. Although every one needs to be wanted to be valued and esteemed by other. Besides a UN wanted pregnancy when not aborted would nearly always result in a baby who is cherished cared for. The culture in our society of a womans right to choose is used to justify abortion as commonplace occurrence. Many women feel they have no choice except abortions because society does not promote childbearing as a positive solution to a crisis pregnancy Woman who have abortions are not given objective information about the humanity of the child in the womb, the possible physical and psychological of abortion and the reality of PTA there is no legal requirement for abortion counselors to tell the woman about her other option counselors to tell her woman about her other option. Women who choose abortion are there for not given the opportunity make a choice based on a range of options.


Religious views on abortion: Early Christian Tradion: Judeo-Christian tradition going back thousands of years has always valued human life. Including unborn human life. The Bible repeatedly refers to the children before birth as simply very small/young children. In Lukes Gospel Jesus & john the Baptist greet one another whilst they are still in the wombs of their mothers. Verse 41 of the first chapter says, It happened, when Elizabeth was filed with the holy sprit. Psalm 139 describe the development of the unborn baby: For you created in my inmost being, you knit my together in my mothers womb. I praise you because I am fearfully & wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place. When I was woven


together in the depth of the earth, your eyes saw my unformed baby. One of the earliest Christian writings, the Didache or the Teaching of the Twelve Apostles states: You shall not kill the child in the womb or murder a new born-infant. The Catholic Church: The Catholic Church opposes the abortion because it believes that life is sacred & inviolable. In 1995, People John Paul II wrote an encyclical letter called Evangelium Vitee (the gospal of life) in which he spoke of the sacred value of human life from its very beginning & of the struggle between the Culture of Life & the Culture of Death.

The Orthodox Churches Generally, the Orthodox Churches forbid abortion as going against the commandment Thou shall not kill. The Russian Orthodox Church condemned abortion in its the Church & the Nation published in 2000. Protestant denominations Many Protestant & Evangelical Christians are against abortion. In Northern Ireland, Catholic & Protestants have united against abortion. However, some denominations are more pre-abortion. The Church of England states that the unborn child is alive & created by God. The 1993 General Synod stated the number of abortions also believes that abortion is sometimes morally acceptable such as when a baby is suffering from a serious disability.


Islam teaches that life begins at conception & is created by God. The unborn child has certain rights such as the right to care, protection & life. Abortion on any grounds is forbidden in Islamic holly book AL Quran. Do not kill or take a human life which God has declared to be sacred. Judasim

The Torah or Jewish law forbids the taking of innocent life and stresses that human beings are made in the image of God. Maimonides, a twelfth centaury interpreter of Jews law declared: A descendent of Noah who kills any was in danger. However, even though traditional Judaism condemns abortion, there has been considerable argument with the Jewish community since the 1960s whether abortion is permissible. Buddhism In Buddhism there was no central authority on ethical matters but the Dalai Lama has spoken in favor of abortion under certain circumstances. In 1993 he said: Of course, abortion, from a Buddhist viewpoint, is an act of killing & is negative, generally speaking. But it depends on the circumstances. If the unborn child will be retarded or if the birth will create serous problems for the parent, these are cases can an exception.(Quoted by Clive Erricker in Buddhism, Hodder & Stoughton, 1995 (page 119)) Hinduism Hindu scriptures refer to abortion as garha-batta (womb killing) & the Atharva Vedas describes abortionists as the greatest of sinners. Gandhi, perhaps the most respected Hindu of the twentieth


century, said: It seems to me clear as daylight that abortion would be a crime. Atheists and agnostics for life Many atheists & agnostics view abortion as a violation of human right and hold pro-life opinions for this reason. As one of prolife atheists who once had an abortion commented: for the atheist who believes that when you die, your life is overthere will be no comforting of this being by a heavy father, angels or relatives after a torturous death; there will be no more re-incarnation transfer. Thousands of times each day unique, never-to-be again, individual beings have their one & only chance at life terminated. As Doris Gordon, founder of Libertarians for life, express it: the purpose of abortion is not merely pregnancy termination: its purpose is to kill, to take life of prenatal human offspring. Under justice, however, there are no such things as a right to kill innocent people- no exceptions. Atheists are passionately against injustice, violence, murder, the death penalty & war. They can therefore, just logically, oppose abortion.


THE INDIAN PERSPECTIVE Indian law allows abortion; communism of pregnancy would involve a risk to the life of pregnant women or grave injury to her physical or mental health . Many were practicing abortion earlier. Because it was illegal, it was practice in a clandestine manner. The passing of the Act. Made medical termination of pregnancy legal, within certain conditions for safeguarding the health of the mother. Abortion is severely condemned in Vedic, Upanishad, the laterpuranic (old) and smriti literature. Paragraph 3 of the code of Ethics of t6he Medical Council of India says:


The Supreme Court has says that the right to privacy is implicit in Article 21 of the Constitution and a right to abortion can be read from this right. The Medical Termination of Pregnancy Bill was passed by both the Houses of the Parliament and received the ascend of the President of India on 10th August 1971. It came on the Statute Book as the The MIP Act, 1971 this law guarantees the Right of Women in India to terminate an unintended pregnancy by a registered medical practitioner in a hospital established or maintained by the Government or a place being approved for the purpose of this Act. By the Government. Not all pregnancies could be terminating. Section 3 of the said act. Says that pregnancy can be terminated. (1) As a health measure when there is danger to the life or risk to physical or mental health of the women; (2) On humanitarian grounds such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic women, etc and (3) Eugenic grounds- where there is a substantial risk that the child, if born would suffer from deformities and diseases.

International Instruments Relating Right To Abortion Article I of the American Declaration of the rights and duties of man and the inter American Commission of Human Rights say that abortion is legalized until the end of Firat trimester Right to life is protected from the moment of its conception by Articles 6{1} of the ICCPR, Article 2 of the European Convention of the Human Rights and Article 4 of the African Charter of Human and peoples right.


But they are silent on the issue of when dose life begins. But the interpretations have forced us to believe that the child is not to be protected from the time of its inception. The right to life of the fetus has to be balanced with the rights of the mother. International courts and tribunals have not address the difficult philosophical issue of when life beings, but have focused on the meaning of the language used in the relevant treatise. They have generally held that the references to every human being or everyone or every person do not include an unborn foetus. The right of woman to her privet life has been the basis on which a number of international bodies have upheld the right of women to have an abortion. The right to freedom of expression and access to information has been used to argue for the right of a women to receive information about abortion option .The right to access abortion may also be based on the right of a woman to decide freely and responsibly on the number and spacing of her children. In a January 2006 CBS News poll in US, which asked, what is your personal felling about abortion, 27% said that abortion should be permitted in all cases, 15%that it should be permitted, but subject to greater restrictions than it is now,33% said that it should be permitted only in cases in such as rape, incest or to save the womens life,17% said that it should only be permitted to save the womens life, and 5% said that it should never be permitted [71] An April 2006 Harris poll on Roe v. wade, asked, Do you favor or oppose the part of Roe v. wade that made abortions up to three month of pregnancy legal, to which 49% of respondents indicated favor.


Granted the permission to terminate the pregnancy. Add Harish & Niketa Mehtas case

Dr. Nisha Malviya and Anr.Vs. State of M.P 2000 CriLJ671.

The accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that two other co-accuseds took this girl, and they terminated her pregnancy. So the charge on them is firstly causing miscarriage with out consent of girl. The court held all the three accused guilty of termination of pregnancy, which was not consented by the mother or girl.
Murari Mohan Koley Vs. the state and Anr2003

In this case a woman wanted to have abortion on the ground that she has a 6-month-old daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a consideration. But somehow the condition of the women worsened in the hospital and she was shifted to another hospital. But it resulted in her death. The abortion was not done. The petitioner who was a registered medical practitioner had to establish that his action was done in good faith (includes omission as well )so that he can get exemption from any criminal liability under section 3 of the MPT Act,1971.


Right to abortion of the mother Vs Right to life unborn

Religious, moral and cultural sensibility continued to influence abortion laws throughout the world. The right to life. The right to liberty, and the right to security of person are major issues of human right that are sometimes used as justification for the existence or the absence of laws controlling abortion. Many countries in which abortion is legal require that certain criteria be met in order for an abortion to be obtained, often, but not always, using a trimester-based system to regulate the window in which abortion is till legal to perform. In this debate, arguments presented in favor of or against abortion focus on either the moral permissibility of an induced abortion, or justification of laws permitting or restricting abortion. Arguments on morality and Legality tend to collide and combine, complicating the issued at hand. Advocacy group belonging to one of two camps often spearheads abortion debates, especially pertaining to abortion laws. Most often those in favor of legal prohibition of abortion describe themselves as pro-life


while those against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate the central principles in arguments for and against abortion: Is the fetus a human Being with a fundamental right to life for pro-life advocates and for those who are pro-choice, Does a woman have the right to choose whether or not to have an abortion?

Resulted in illegal abortions and risking the life of the woman.

Though a series of government circulars banned the sex determination tests from 1977 on words yet a field study conducted in Mumbai by Sanjeev Kulkarni (1986) brought to light the fact that 84 per cent of the gynaecologists admitted to having performed the amniocentesis tests for sex determination. Of this 74 per cent gynaecologists had started performing the test since 1982 and only a few cases of genetic defected. The overwhelming majority of patients, most of who were from middle or upper middle class, were only interested in knowing the sex of the foetus. Interestingly, Bandewar (2003: 2075-2081) found that 64 per cent of the abortion service providers were against sex selective abortion, 10 per cent said they were against it but had to do it and the rest about 24 per cent approved the practice of sex selective abortion. Although there was not much variation among service providers working in public/private health care facilities or rural/urban location but difference was found among men and women service providers. About 28 per cent men approved of sex selective abortion practice whereas it was only 17 per cent in case of women providers. Thus it was higher percentage of women providers (68 per cent) compared to men (61 per cent) who were against such a practice. Those who disapproved of the practice of sex selective abortions but engaged in it against their principles expressed their compulsions and helplessness for two reasons: 1. Due to pressures arising out of unhealthy competition in the health care service sector it was said that if they did not provide abortion care services, some other would have provided them, and 2. Implications in terms of persistent abuse and exploitation that the women Have to face back home in case they did not get the abortion done. Many talked of compulsions that women have at their ends to go for sex selection abortions. These arises either out of social norms


fostering son preference or because their lives are put at stake in case they do not produce a son. Some also said that unwanted girl ran the risk of severe ill treatment at their natal home causing them emotion and mental trauma. Hence the service providers empathized with the womans social needs for sex selective abortions (Economic and Political Weekly, 2003). Nearly 10,000 cases of female feticide have been reported from Ahmedabad alone (Gangrade, 1988:63-70). Additional threat that causes grave concern is the development of new pre-selection techniques, such as, Electrophoresis, Ericssons method, ect, which involve prior manipulation of the sex of the child. What will be the future of the female race is a moot question. There is dearth of empirical data on this subject. Section 312-316 of the Indian Penal code (IPC) deal with miscarriage and death of an unborn child and depending on the severity and intention with which the crime is committed, the penalties range from seven years to life imprisonment for fourteen years and fine.

Legal provisions
Until 1970 the previsions contained in the Indian Panel Code (IPC) governed the law on abortion. The Indian Panel Code 1860 permitted legal abortion did whit out criminal intend and in good faith for the express purpose of saving the life of the mother. Liberalization of abortions laws was also advocated as one of the measure of population control. With these considerations, the medical termination of pregnancy Act was passed in July 1971,which came into force in April 1972. This law was conceived as a tool to let the pregnant women decide on the number and frequency of children. It further gave them the right to decide on having or not having the child. However, this good intentioned step was being used to force women to abort the female child. In order to do away with lacunae inherent in previous legislation, the prenatal Diagnostic Techniques (Regulation and prevention of misuse) Act had to be passed in 1994, which came to force in January 1996.The Act prohibited determination of sex of the foetus and


stated punishment for the violation of the provision. It also provided for mandatory registration of genetic counseling centers, clinics, hospitals, nursing homes, etc. Thus both these laws were meant to protect the childbearing function of the women and legitimize the purpose for which pre-natal test and abortions could be carried out. However, in practice we find that the provisions have been misused and are proving against the interest of the female. Female foeticide and Infanticide: State-wise incidence Analysis of crime against Girl Children According to Crime in India (2000 foeticidecases reported an increase by 49.2percent over previous year and infanticide cases increased by19.5 percent over previous year. However, state-wise analysis reveals wide variation from state to state. Table I shows that not a single case of foeticide or in fanticide has been reported from Arunachal Pradesh, Goa, Himachal Pradesh, Manipur, Mizoram, Nagaland, Tripura and Surprisingly even Uttar Pradesh. State of Assam, Gujarat, Jammu and Kashmir, Kerala, Panjab, Sikkim, Tamil Nadu, and West Bengal have reported from these states, whereas only feticide cases have been reported from Orissa and Chandigarh. It is worthwhile exploring why crimes against the born and the unborn do not exist in some state and why some state has reported only infanticide cases or only foticide cases. Can it be because of not reporting of case or because of cultural and social variations that may be specific to those states? These are some of the issue that needs to be looked into. Among the states /Union Terrifies (come directly under central government rule) that report prevalence of both infanticide and foeticide, the highest rate of prevalence is found in the state of Maharastra, Haryana, Bihar and the union Territory of Delhi.


Table 1:Incidence (i) Percentage Contribution during 2000 (State and UT-Wise) STATE 1 2 3 4 5 6 7 8 9 10 11

Andhra Pradess

FOETICIDE I 8 0 1 0 13 0 1 0 14 41 1 P 8.8 0.0 1.1 0.0 14.3 0.0 1.1 0.0 15.4 45.1 1.1

INFANTICIDE I 8 4 4 4 1 1 2 2 31 20 0 P 7.7 3.8 3.8 3.8 1.0 1.0 1.9 1.9 29.8 19.2 0.0

Assam Bihar Gujarat Haryana J&K Karnataka Kerala M.P. Maharasht ra Orissa


12 13 14 15
Union Territories

Rajastan Sikkim 96 Tamil Nadu W.B.

9 0 0 0

9.9 0.0 0.0 0.0

5 3 8 2

4.8 2.9 7.7 1.9

16 17

Chandigar h Delhi

1 2

1.1 2.2

0 2

0.0 1.9

Patel (1994: 60-61) mentions the efforts of womens group in Rajasthan and Tamil Nadu and the forum against Sex determination and sex pre-selection. These group not only highlighted the uttar powerlessness women who opt left for sex linked abortions but have also brought about a significant qualities change in the consciousness of the decision making bodies (state government origination & non government origination) by highlight permanent issues such as: 1. Economics who apply the law of demand and supply and recommend that the reduction in the supply of women will enhance there status need to review anthropological evidence that shows that the regions in India where the Sex ratio is extremely adverse are notorious for some of the most in human practices against women. These include forced polyandry, gang rape abduction dowry murders, and the degraded status of widows deserted women. 2. Techno-doctors who promote non-reproductive technologies for commercial reasons cash in on anti-women biases that redact in Indian women to a male child producing machine They treat a healthy woman as raw material, not as a human being, converting her in to a


pathological case. They violate the code of medical ethics by violating womans dignity and bodily integrity and also become a party to aiding and abetting the process. 3.Advocate of population control of whose target as to achieve a net productive rate of zero (NRR-O) by supporting foeticide and whose cynical logic is Fewer women = Lesser procreation. Another effort by a voluntary organization in Tamil Nadu has been reported by Giriraj (2004: 13-14 & 35-36) who conducted the study in Kadayampatti. Panchayat of Salem district on 42 families identified by a voluntary organization World Vision as rescued families who were provided facilities, assistance and awareness with a view to set their mind against female infanticide. His study reveled that 63.91 percent of the respondents were in the age group of 20-30 years and 26.19 percent were above 30 years. Of those 19.05 percent of the respondent were married at the age of 19 year and above. Majority of them married between 16-18 years (52.38%), and (28.57%) below 15 years. A large majority (95.24%) had nuclear families and nearly two third (71.43%) had 2-3 girl children. The women respondent facing problem in the family and psychological disturbance because of giving birth of the girl child and regretted being women. Girl child was considered a liability by 90.48 percent of them spit of the fact that their own educational background was very dismal, 83.33 percent were illiterate. Employment status showed that more than half {52.38%} worked as coolies whereas 42.86 per cent were unemployment .The monthly earnings in majority of the cases ranged between Rs.1000-2000.


Almost all the respondents stated that burden of dowry and poverty were the two main reasons for female infanticide however; 76.19.percent stated fear of safety for the girl as a reason for female infanticide and 83.33 percent accepted son preference because it is the male who carries the family lineage. Overwhelming majority {83.33%} of the respondents believed that they would have committed female infanticide if the voluntary organization would not have intervened and provided economic/ incentives and awareness generation. Only 4.76 percent of the respondents said that they were afraid of the laws enacted by the government. Most of the women reported that they killed their babies under pressure from there husbands. Many a time their husband would beat up wives and force them to kill the female child because she is an economic burden. Such situation occur more so among poverty stricken families. Srivastava (2001:7-12) states that, the spectre of domestic violence chocks their voices and silences their opposition to attitudes and practices derogatory to their dignity. This social reality doesnt allow women to protest against any suggest any suggestion or coercion to get the female child aborted. They do so under male pressure, coercion and domination thus willingly or unwillingly they become party to the crime for they have no control even over there bodies.


Policy Framework National plan of action exclusively for the girl child (1991-2000) was formulated in 1992 for the Survival, Protection and Development of the Girl Children The Plan recognized the right of the Girl child to equal opportunity, to be from hunger, illiteracy, ignorance and exploitation. Towards ensuring survival of the girl child, the objectives are to: Prevent cases of female foeticide and infanticide and ban the practice of amniocentesis for sex determination; End gender disparity in infant mortality rate; eliminate gender disparity in feeding practices, expend nutritional interventions to reduce sever malnourishment by half and provide supplementary nutrition to adolescent girls in need; Reduce death due to diarrhea by 50% among girl children under 5 years and ensure immunization against all forms of serious illnesses; and Provide safe drinking water and ensure access to folder and drinking water nearer home. The launching of the Balika Samariddhi Yojana in 1977 in a major initiative of Government to raise the overall status of the girl child. It intends to change family and community attitudes towards her and her mother. Under this scheme about 25 lakh girl children born every year


in families below the poverty line are to be benefited. The first component of the scheme, which has already been launched, is to provide Rs. 500/- as a post -delivery grant to the mother of the girl child as a symbolic gift from Government. The other components proposed under the scheme are provision of annual scholarship to the beneficiaries when they go to the school and assistance for taking upon income generating activity when they attain the age of maturity. Besides having specific legislation and policy proclamations to deal with this menace, the precipitating factors such a dowry, poverty, and womens economic dependence etc., leading to the problem of foeticide and infanticide have been address by enacting various legislations as: Dowry Prohibition Act, 1961{Amended in 1986}; Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act; 1956 Immoral Traffic Prevention Act; 1986 Equal Remuneration Act; 1976 etc. These and various other legislations and policy proclamation intend to bring about womens economic and social empowerment to the maximum and it is hoped that such measures would equip women to exercise their rights.

Concluding Remarks


Legally infanticide amounts to homicide and all legal provisions applicable to the offence of homicide are applicable to infanticide {Section 318 concealment of birth by secret disposal of the dead body amounts to culpable homicide}. The National Plan of action for the South Asian Association for Regional Cooperation. {SAARC} Decade of the Girl Child {1991-2000} seeks to ensure the equality of status for the girl child by laying down specific goals for her dignified survival and development without discrimination. The codified law world over considers human life as sacred and specific legal provisions have been devised to protect the life of born and the un- born. However, the objective of the law gets defeated due to lacunae in the law and lack of proper implementation. Even though the law is a powerful instrument of change yet law alone cannot root out this social problem. The girls are devalued not only because of the economic consideration but also because of sociocultural factors, such as, the belief that son extends the lineage, enlarges the family and tree, provides protection safety and security to the family and is necessary for salvation as he alone can light the funeral pyre and perform other death related rites and rituals. Evidence indicates that the problem of female foeticiede and infanticide is more prevalent in orthodox families (see Sristava, 2001) It is therefore, essential that these socio-cultural factors be tackled by changing the trough the thought process through awareness generation, mass appeal and special action. In addition to this all concerned i.e. the religious and social leaders, socially responsible media, the doctors the medical /Association (by enforcing cement personnel should work in a coordinated way.


RIGHTS OF THE FOETUS Law recognizes the foetus as a special aggregation of cells with a potential for independent life and in this way protects the rights of an unborn child. It has legal rights, such as the right to inherit, the right not to be harmed by the drugs and the right to bring a tort action. So, an abortion may be interpreted as killing a potential heir or a potential tort suit bringer. Abortion is a form of murder, in which the principal is almost never prosecuted, but the abortion may be prosecuted. The PreConception and Pre-Natal Diagnostic Techniques (PCPNDT) (Prohibition of Sex Selection) Act 2003 is a landmark legislation that recognizes the right of an unborn female child- Ramaiah GV: Right to conceive vis--vis Right to Birth, AIR 1996, Journal 136-140 at 139. Though the dead posses no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from awning property before he is born. His ownership is necessarily contingent for he may never be born at all; but it is nevertheless a real and present ownership. A man settles property upon his wife and children to be born of her. A child in the mothers womb is a person in being for purpose of acquisition of


property by the child itself; or being a life chosen to form part of the period in the rule against perpetuities. To what extent unborn person can possess personal as well as proprietary right is an unsettled question. In R v. Tait, (1989) 3 WIR 891, the court of Appeal quashed the conviction of a burglar on the ground that threat to kill a foetus is not offence directed against another person. The foetus in utero is not in the ordinary sense another person distinct from its mother. In R V. Sullavan, (1998) 43CCC 3d 65, midwives who attended the delivery of a foetus that failed to survive birth were changed with the offence of criminal negligence of causing death to another person (foetus). The conviction by the trial court of Appeal on the ground that a foetus that was not living on complete removal from its mothers body was not a person but the court substituted a verdict of guilt of criminal negligence causing bodily harm to another person namely the pregnant woman. In Dietrich V Northamption 138 Mass 14, (1884), the foetus in the birth canal was found to be part of the mother, so that injury to the foetus constituted injury to her. This view was rejected in a later case in which the unborn child was recognized as a human being. It was held that an unborn child need not reach the stage of viability to maintain an action for recovery of damages under the law of Torts-Williams V Marison Rapid Transit Ine 152 Ohio 114, 87 N.E. 2d 334(1949).


It was held that doctors treating any woman of childbearing age must be protected from the risla of being accused of harming a foetus. Some accepted examples of preconception injuries to parents leading to disabilities to their children are: (I) Failure to give a rhesus negative woman anti-D gamaglobulin in the first 72 hours after the birth of her first Rh+child; (II) Radiation of genital organs causing gene mutation, there could be liability in negligence were proved; or (III) A congenital syphilitic child born as a result of negligent transfusion to the mother before conception, of a syphilitic donor.

However, the risk is limited if any of the parents are aware of a risk of a disabled child being born. Legally, the child is bound by mothers exemption classes, but is unable to sue upon her contracts. It must also be remembered that the common law protects a professional man, who has acted in accordance with the standards of reasonably competent man. It was held that syphilitic child born of a syphilitic rapist is a result of a result and not negligence-45BCJ, 14 September 1974,696. RIGHT OF THE UNBORN CHILD TO BIRTH The Matrimonial Law also recognized the right of unborn child (i.e. foetus) to birth. Where a woman becomes pregnant during the period of wedlock, she cant terminate her pregnancy at her will. In Smt. Satya V. Shri Ram AIR 1983 P&H 252 the High Court of Punjab and Hariyana held that termination of pregnancy at the instance of wife but without the consent of her husband amounts to cruelty. In Deepak Kumar Arora V.


Sampuran Arora (1983) DMC 182, Division Bench of Delhi High Court has observed that If a wife undergoes abortion with a view to spite the husband it may, in certain circumstances, be contended that the act of getting herself aborted has resulted in a cruelty. In an earlier English case, Forbes V. Forbes (1955) 2 All ER 311, it was held that if a wife deliberately and consistently refuses to satisfy her husband natural and legitimate craving to have children, and the deprivation reduces him to despair and affects his mental health the wife is guilty of cruelty. In Susil Kumar V. Usha AIR 1987 Del 86, the court held that aborting the foetus in very first pregnancy by a deliberate act without the consent of the husband would amount to cruelty. Here the intention of the Legislature may be understood to bring the unborn child safely to the world. Either the wife or the husband individually takes a decision to abort the foetus. But their collective decision is certainly a threat to the life of the unborn child. However such collective decision is also subject to the provision of Indian Penal Code and the Medical Termination of Pregnancy Act. When there is no possibility of begetting a living child with all human potential it is better to prevent such child to be born and thereby save it from earthly miseries. However, the right to abortion and the right to birth must be decided on the merits of each independent case. Any rigid principles in this concern would held to unnecessary ailment to the mother and to the child in the womb- AIR 1996 Journal Section 136 at 138,139.

PROPRIETARY RIGHTS OF FOETUS To what extent an unborn person can possess personal, an as well as proprietary right is somewhat unsettled question. It has been held that a posthumous child is entitled to compensation under Lord Campbells Act for the death of his father. The Hindu Law has for many purposes equated person in the womb to a person in existence. The taxes lay down that if the pregnancy is


known, the partition should be post pended till the child is born. But if the coparceners do not agree to this, than share equal to the share of a son should be reserved for the child in womb. In Muslim Law though there is no provisions for the portion in favor for an unborn child but there may be bequest to an unborn person. A child who is born within six month of the date of making the will is treated as the legatee in existence and hence, competent to take the bequest. But, in Shia Law, a bequest to a child in the womb is valid, if it is born in the longest period of gestation, i.e. ten lunar months.

UNDER TRANSFER OF PROPERTY ACT, 1972 Section 13 of The Transfer of Property Act 1872, Transfer for benefit of unborn person- where on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the 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 transfer in the property.

UNDER INDIAN SUCCESSION ACT, 1925 Section113 of the said Act Bequest to person not in existence at testators death subject to prior bequest- Where a bequest is made to a


person not in existence at the time of the testators death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

RIGHT PER SE OF THE FOETUS In A.C Re 1[8], 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. Wade 1[9] that states 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. Woodward 1[10] and more recently in Whitner V. South Carolina 1[11]. In all these cases it was opined that viable fetuses are persons in the eyes of law, certain legal rights and privileges and exclusion of viable foetus from status of person would be an unborn, illogical and unjust. It was unanimously held that a foetus having reached the 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 states interest in protecting the life and health of the viable foetus is not merely legitimate but compelling.1 [12] In cases, where the woman is pregnant and she cannot have normal vaginal delilvery1 [13], the only option left to the doctors after detailed medical prognosis is the caesarean section. If the woman consents to the operation, there is no problem but if she refuses and her refusal may prove fatal to the foetus, them in such a case the right to life of the valid and recognized legal person would be infringed. This is based upon a simple logic that the foetus is a person in eyes of law and as such it carries with it all right vested in a person, including right to life. And if such a right is infringed, the court through court-ordered caesarean section could well enforce it.


It is a general societal tendency to privilege and reify medical opinion.1 [14] It means that whatever opinion a doctor gives, it will be the final word for the patients, at least in the present scenario in India, contrary to the belief that a woman knows her body better. It is because of this psychological thinking prevalent in the society that when a woman rejects the medical advice tendered to her, the possibility that she might be right and her doctors wrong is unlikely to be raised. Thus, as a mother-to-be, she is seen to be jeopardizing not only herself but also her unborn child. As such, her sanity, creditability and competence to decide about her own body comes into question and thereby hampering the role of consent of the mother in allowing or disallowing the medical authorities to operate upon her. The reasoning applied in such situations


is simple, the implicit societal expectations that mothers must, if they are mentally normal, love their children, nature and protect them 1[15]. The expectant mother heads placed her in a special class of persons who are bringing another person into existence. Thus when a person who has undertaken such a great responsibility, refuses and rejects the medical prognoses, her competence to consent definitely comes under close scrutiny. This competence to consent plays an important part in situations where the court has to decide about ordering the caesarean section and the pregnant woman has refused to allow medical treatment upon her body, claiming bodily integrity and autonomy. The courts can discredit any such consent before making and order for caesarean section.


D.Rajeshwari Vs State of Tamil Nadu 1996 Cri.L.J 379 The case, is of an unmarried girl of 18years who is praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has cause great anguish in her mind, which would result in a grave injury to her mental health. Since the pregnancy we caused by the rape. The court granted the permission to terminate the pregnancy. Dr. Nisha Malviya and Anr. Vs. State of M.P. 2000 Cri.L.J 671 The accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that two other co-accuseds took this girl, and they terminated her pregnancy. So the charge on them is gristly causing miscarriage without consent of girl. The court held all the three accused of termination of pregnancy which was not consented by the mother of the girl. Murari Mohan Koley Vs. The State and Anr. 2003 In this case a woman wanted to have abortion on the ground that she has a 6 months old daughter. She approached the petitioner for an abortion. And the petitioner agreed to it for a consideration. But somehow the condition of the woman worsened in the hospital and she was shifted to another hospital. But it resulted in her death. The abortion was not done.


The petitioner who was a registered medical practitioner had to establish that his action was done in good faith (includes omission as well) so that he can get exemption from any criminal liability under section 3 of the Medical Termination of Pregnancy Act, 1971.

SUGESTION TO PROTECT THE RIGHT OF FOETUS: 1. It is a fundamental right of every person to get fresh air, water and environment. If one locked at air and water pollution, smoking, alcohol, low-level radiation and other environmental toxins, I dont think there is impossibility existence of healthy foetus. 2. The great urgency of the issue and the need to move it beyond academic discussion to wider popular education. Thats why unborn child, especially girl child, is given special protection through pre-conception and pre-natal diagnostic techniques (prohibition of sex selection) act, 1994. The act prohibits the sex determination due to which unborn girl child can be protected. 3. The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth 4. The life of an unborn child is unique and individual; it must have the same identity and the same substantial continuity, and as such is untouchable, from the moment of conception right up to its natural death. 5. Human life inside the womb, is not protected enough, despite it being the life of a human being; in the first part of its life, the fate


of unborn child is sometimes left to the free decision of the woman, at other times, on the other hand, it a protected simply because it is deemed to be socially opportune or even useful to do so. In this way two levels of the human being are created: the biological and the legal one. The latter is created by means of an artificial process of superimposition, which is not regulated by ethics. As a consequence some homines nondum mortui (civil death) and also hominess nondum nati (the unborn child) are denied person status. The unborn child should not denied to be a person till it born dead. 6. The legislators and advocates of choice should take steps for desining bills to protect fetuses. They must be alert to the pitfalls in such bills and refrain from supporting statutes that endanger civil liberties. 7. If foetus protection laws without adequate are adopted, state or local officials might feel licensed to prosecute a woman who smokes or drinks alcohol during pregnancy and subsequently miscarries or bears a stillborn fetus, or perhaps even a live baby in of special medical attention. And woman might be sued for prenatal negligence by their own children, as happened in Grodin v. Grodin, a 1980 case from Michigan in which a court held that a child could sue his mother for having taken tetracycline during pregnancy, allegedly resulting in discoloration of the childs teeth. Thus, the foetus protection laws should be adopted with lest exceptions.


Conclusion In the light of the above discussion on Research i.e. Right of the Foetus, concluded that Foetus Right has been guaranteed by all the statute of our country. We can say that the Foetus Right is equal to the person who is already in existence.



MODIS Medical Jurisprudence & Toxicology


K.D. GAUR ..Indian Penal Code


3. 4. 5. 6.

G.P. TRIPATHI .. Transfer of property Act Dr. S.K.A. WASTHI- R.P.KATARIA ..Law Relating to protection of human rights SHIRISH N DAFTARY- SUDIP CHAKRAVARTI . Manual of Obstetrich INTERNET


Section-359.Gift to unborn person: Rule apart from statute.- under pure Hindu law, a gift cannot be made in favour of a person who was not in existence at the date of the gift. Section-360.Gift to unborn person :Rules as altered by statue -The rule of Hindu Law stated Sec-359 that a gift cannot be made in favour of an unborn person has been altered by three acts,namely ,the HinduTransfers And Bequest Act,1914,The Hindu Disposition Of Property Act,1916,and The Hindu Transfers And Bequests[ity Of Madras]Act,1921. WILLS: Section-373.Bequest to unborn persons:Rule as altered by statuteThe rule of Hindu Law stated in Sec-372 that a bequest cannot be made in favour of a person who was not born at the date of the testators death has been altered by three Acts,namly,The Hindu Transfer And Bequests Act,1914,The Hindu Disposition Of Property Act,1916,and The


HinduTransfers And Bequests[City Of Madras ]Act,1921. The rule as altered by these Acts may be stated as follows:Subjects to the limitations and provisions contained in sections 113,114,115 and 116 of the Indian Succession Act,1925, no bequest shall be invalid by reason only that any person for whose benefit it may have been made was not born at the date of the testators death. Section 383-Limitations subject to which a gift or bequest can be made to an unborn person-As has already been, a Hindu may under the Acts of 1914,1916 and 1921 referred to in Sections 360 and 373 above ,dispose of his property by transfer inter vivos or by will in favour of an unborn person. This, however, can only be done subject to certain limitations and provisions. These limitations and provisions are as follows: (a)In respect of dispositions by transfers inter vivos, those contained in Chapter II of the Transfer of Property Act,1882,and (b)In respect of dispositions by will, those contained in Sections 113,114 ,115 and 116 of the Indian Succession Act,1925. Section 384-Disposition in favour of unborn person subject to prior disposition-Where a gift is made to a person not in existence at the date of the gift or a bequest is made to a person not in existence at the death of the testator, subject to a prior gift or bequest, the later gift or bequest shall not take effect, unless it extends to the whole of the remaining interest of the donor or testator in the property.



Section-20.Right Of Child In Womb A child who was in the womb at 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.

MUSLIM LAW GIFT: Child In Womb A child in mothers womb is competent donee provided it is born alive within six months from the date on which gift were made. A child in the mothers womb i.e.,child en ventre sa mere is a person in existence. Therefore, the child in its mothers womb is a competent donee. Although the child in mothers womb has no wordily existence yet, in the eyes of law it is regarded as a living person. However, the birth of such child is not certain. The child may die in the womb or abortion may take place. Therefore a gift may be made in favour of a child in the womb but the child must be born alive. If after the gift an abortion takes place or the child dies in the womb, the gift already made becomes void. Accordingly, under Muslim law, a gift in favour of a child in the womb is valid provided such is born alive within six months from date on which the gift was made.1