Human rights and “being human” are inextricably connected to each other. It is critical for the understanding of international and human rights law to see how it can protect the individual especially, in the context of morality and whether it includes unborn also. The question of the legal status and protection of the unborn in international law is therefore implicated in the answering the dilemma as to whether the foetus can be considered a person or whether it will not be considered as one.
This research project is largely based on secondary & electronic sources of data. Books, case laws, journals & other reference as guided by faculty of Jurisprudence are primarily helpful for the completion of this project.
The project deals with Legal status of foetus and International legal framework , the pro-life and pro-choice supporters and how the recognition and non-recognition of foetus as a person under the eyes of law affects them in the real life.
Legal Status of Foetus and International Legal Framework- A jurisprudential analysis is important as it discusses the concept of foetus, the basis of its recognition in the International instruments as a major element in the process of providing them with rights. The study is also important because it studies the reason for non-recognition of foetus in the various legal statutes and ultimately discusses the scenario in the present and how it has undergone such a huge transformation from ancient times and what can be the possible measures to better the conditions of foetus and the pregnant women simultaneously.
Objectives of Study
- To study the concept of foetus in jurisprudence.
- To discuss the various International legal instruments recognizing the rights of unborn.
- To analyse the scenario in the contemporary world and to scrutinize its existence as a person under eyes of law.
Nature of Study
This research project is Non-Doctrinal in nature since it is largely based on secondary & electronic sources of data and also since there is no field work involved while producing this research and it largely involves study of various International statutes and comparison from different books, journal and other online sources it is not empirical in nature.
Sources of Data
Data that were used for the completion of this research project are all secondary sources of data ranging from books, journal, articles and other online sources and as far as case laws are concerned these cannot be said to be primary sources since they are not first-hand information or judgment reports but a modified form found in books or journals.
- VD Mahajan’s Jurisprudence & Legal Theory, V Edition – This book has been referred to understand the concept of justice and theory of justice by H.L.A Hart.
- Rita Joseph, Human Rights and the Unborn child : This book has been referred to understand the status of unborn under various International legal instruments.
A foetus is an unborn, developing mammal usually after the embryonic stage. The foetal stage begins around the tenth week of pregnancy and continues until birth. Most of the identifying features of human beings will begin to develop in the foetus at the foetal stage. All adult human beings have right to life, but only some approve of the fact that foetuses also have right to life. Renowed International law jurists emphasise that:
The individual is the ultimate unit of all law, international and municipal, in the double sense that the obligations of international law are ultimately addressed to him or her and that the development, the well-being and the dignity of the individual human being are a matter of direct concern to international law.
The dilemma as to whether there exists a fetal right to life has been discussed in this paper. Subsequently, the answer to the question as to whether a foetus can be considered as a person under the eyes of law has been deciphered. For this, the paper has been divided into four parts, wherein the first part deals with what is a foetus, the meaning of a legal person and the rights attached to these persons. Consequently, the evolution of life and the history of recognizing foetus has been discussed. International legal instruments are the major place wherein the existence of unborn has been discussed. An individual country’s decision to take up pro-life or pro-choice approach for granting the legal status to foetus depends largely on these instruments which clearly bring out the rights that these foetuses’. However, the fact that foetus do not carry any duties prejudices the approach to believe that the foetus is a person.
The basic rights that every person has like Right to life, right to speech and expression, right to live life with dignity, right to practice religion etc. But then, every right has a correlative duty attached to it. The recognition of foetus without the existence of such duties has been covered in the paper.
CHAPTER II: Evolution of life
From the point of view of cellular biology, the moment fertilisation or conception takes place, that is the moment life begins. But embryology holds the life to begin 14 days after fertilisation. According to neurology, the moment the brain can be read on the EEG is the moment when life begins. This occurs 40 days after fertilisation. However ACC TO THE MEDICAL BASICS, the heart of an unborn starts beating 20 days after fertilisation and it acquires its blood type.
Samuel Armase case
Alex and Julie Armas first discovered that their baby had spina bifida during an ultrasound 14 weeks after conception. The Armases came across the Vanderbilt procedure while researching their options online.
This was the surgical team’s 54th operation on a fetus still in the uterus. During the operation, Dr. Joseph Bruner opened the womb and Dr. Tulipan successfully alleviated the effects of the opening in Samuel’s spine caused by the spina bifida.
Little Samuel’s mother said they “wept for days” when they saw the picture. She said, “The photo reminds us a pregnancy isn’t about disability or an illness, it’s about a little person.” Samuel was born in perfect health, the operation 100 per cent successful. It was hence stated that the foetus was a living being inside the body of another living being.
CHAPTER III :HISTORY
In ancient cultures and civilisations the legal status of the child normally came to be considered in the context of abortion or infanticide or in the context of assaults on pregnant women. The Hittites, Assyrians, Babylonians, Greeks, Romans and various post-Roman barbarian kingdoms have all of them reflected on the issues involved. The rank of the perpetrator of the assault, the rank of the victim, and the state of embryological development of the child are all factors that played a role in determining the seriousness of the offence.
Jewish law was based on the passage from Exodus: which talked about punishing the person who would hurt a woman bearing a child but no harm is caused and if any harm is caused, the result would be to take life for life. There were two sets of interpretation ‘harm follow’ phrase. One set of jurists believe that the harm is for the harm caused to the unborn foetus but on the other hand jurists believe that the harm refers to the harm caused to the woman herself. Among the Greeks, the Hippocratic Oath famously forbade abortion.
Plato, however is of the view that the offsprings of the inferior men and women or the babies born deformed should be hidden in a secret place and unknown place.” It may be that Plato is indeed recommending infanticide although this has been doubted. However, his Aristotle is of the same view as Plato.
While abortion is not specifically mentioned in the New Testament, the Didache which is the Teaching of the Twelve Apostles, which dates from the 1st century A.D. dictates not to kill a foetus by abortion or to commit infanticide, i.e. a clear rejection of both. Again, in its fifth chapter, which describes the Way of Death, included among its many paths is the murdering of children who are God’s image.
RIGHTS OF UNBORN UNDER THE INTERNATIONAL LEGAL INSTRUMENTS
For the pro-choice supporters, reproductive choice rights are seen as one of the most important rights where measures are needed to reach substantive equality between men and women. It has been held that men are not similarly affected by pregnancy and therefore the burden of an unwanted pregnancy is discriminatory. Women are unable to shape their lives and are “subjugated by their reproductive role which is determined by society at large and by their husbands in particular”. Therefore, the view is that a woman’s equality and status is reduced because she cannot control an unwanted pregnancy.
However, the pro-life supporters are of the view that no human has a right to take away the life of another human being, as strongly portrayed by UDHR without any discrimination of unborn. This narrative tends to define the unborn as “human beings”, “persons” (or “something” very similar to a person or a human being), while the former narrative manifests itself most pronouncedly in the constitutional right to abortion.
This never-ending pro-choice and pro-life debate has been discussed through the various international instruments.
Recognition under UN Charter
The UN was founded to prevent the systematic disregard of fundamental principles; the world should be reminded of the dangers that inhere in disregarding the intrinsic dignity and inviolability of all human life. The UN can be a hostile place for Pro-Lifers and that has led many to believe that the institution itself is anti-life. Although people think that UN is dominated by those who believe the unborn have no rights, this is not the natural position of the Institution itself. Indeed abortion is in direct contradiction of the UN charter of human rights.
The preamble to the United Nations Charter (1945) para 1: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …” The phrase ‘all members of the human family’ indicates that there are rights reserved for the unborn also and any failure to recognise it will be in contravention of the right to live life with dignity. The recognition of the “inalienable rights of all members of the human family” means that not only can these rights not be taken away but that they are given to all human beings without condition. This means that any claim that a certain member of species is too young or too mentally disabled to qualify for basic human rights is in direct contravention of the charter. So, it is an undeniable fact that unborn children are human beings it would be illogical to exclude them. However, it would seem that the reason the term born was used is because that when the charter was being written, it was upon birth that the fundamental Human rights began to be abused. Now however rights are under attack right from conception.
Also, from Article 3 which says “Everyone has the right to life, liberty and security of person”, it is very evident that those who use the UN as a vehicle to push a Pro abortion agenda are being grossly inconsistent. On one hand they are asking us to accept a supposed right to abort on demand while ignoring the clearly defined inalienable right to life of all unborn children.
The United Nations has, in the Universal Declaration of Human Rights, proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
Also, the preamble’s fourth paragraph offers proof that the UDHR ‘recognized’ that the child before birth, no less than the child after birth, is an appropriate subject of human rights law and is entitled to appropriate legal protection. It declared: ‘Whereas the need for such special safeguards [i.e., those mentioned in paragraph 3] has been stated in the Geneva Declaration of the Rights of the Child of 1924, and recognized in the Universal Declaration of Human Rights and in the statutes of specialized agencies and international organizations concerned with the welfare of children.’ Insertion of the word ‘such’ here and repetition of the words ‘special safeguards’ makes the essential continuity of these two clauses [paragraphs 3 and 4] unmistakably clear.”
It also specifies rights recognized in the Charter of the UN and derives its binding power from the legal standing of that charter. UN members are obliged legally to act in accord with the charter.
According to John Finnis’s Natural Law and Natural Right, the right to life of innocent persons, including the unborn, is rooted in the fundamental natural-law principle that the basic aspects of human good are never to be directly (i.e. intentionally) suppressed, not even against the most specific human i.e., man-made enactments and commands .
Amidst vagueness on the legal status of the unborn in international law instruments, there are indications of some sensitivity towards the unborn in the ICCPR,1966 which reiterates the recognition of the “inherent dignity of the human person”, and that “every human being has the inherent right to life.” Article 6(5) states that:
“the sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”
The rationale for this provision relating to expectant mothers is clearly respect for human life in utero, such that the unborn child shall not be deprived of his or her life in the event that the state was to execute a mother.
The right to life is non-derogable under ICCPR. This means that the States are in no time permitted to or to condone the arbitrary or extrajudicial act of taking life of a human being, including the life of a child before birth. Intentional deprivation of life of an unborn child contravenes Art6(5) of ICCPR and fails the common law tests of absolute “necessity” and “strict proportionality”.
The International Covenant on Economic, Social, and Cultural Rights (ICESCR) does not involve the right to life and has no mention of abortion. Article 10. 2 of ICESCR states “The States Parties to the present Covenant recognize that:
- Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.”
ICCPR and ICESCR act coherently and in accordance with UDHR, as reiterated in the Preamble. Any argument that an economic, social, or cultural right of a pregnant mother should supersede the right to life of the unborn child reveals a fundamental misunderstanding of the priorities of human rights. However, the fact that they recognise pre natal care, implies it does acknowledge the existence of foetus.
Convention on the Rights of the Child
The 1989 Convention on the Rights of the Child indicated international acceptance of the human rights of children. The Convention now establishes legally binding norms and principles which create international standards for states to meet in their domestic legislation and policy concerning areas covered by the Convention (Sloth-Nielsen 1995 SAJHR 402).
The Convention’s purpose is to recognize and safeguard “the inherent dignity and the equal and inalienable rights” of the child.
The first Revised Draft Convention on the Rights of the Child (“first Revised Draft”), adopted by the Working Group in 1980, did temporarily resolve the problem of the definition of a child. In article 1 of the first Revised Draft, a “child” was defined as “every human being from the moment of his birth to the age of 18 years unless, under the laws of his state, he has attained his age of majority earlier.”
The plain meaning of the Convention’s terms does not clarify whether the Convention provisions apply to a “child” before birth. It does not provide a minimum age (the point at which one becomes a child) for application of the Convention, though it does indicate a maximum age(the point at which one ceases to be a child) for Convention purposes. Arguably, if the drafters had intended “child” in the Convention to apply to a point before birth, they would have explicitly noted that application in the definition. Conversely, even the opposite aspect that the definition belongs only to a child after birth has also not been mentioned.
However, several issues suggest that, in spite of the facts stated, the Convention could be read as protecting the rights of the unborn. First, during the Convention’s drafting, a number of states’ representatives voiced concern that without further clarification the ordinary meaning of the term “child” would, in fact, be unclear. Also, the drafters seem to have rejected an explicit definition of “child” in order to encourage more widespread ratification of the treaty by allowing different interpretations of the term and therefore different understandings of the treaty’s scope. Finally, the Convention, as distinguished from other international legal instruments, contains a preamble specifically addressing the rights of the unborn.
The Convention’s ninth preambular paragraph quotes language from the Declaration of the Rights of the Child, noting the necessity of protecting the unborn: “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.” The plain meaning of this text suggests that a child is to be considered a “child” before birth, and that an unborn “child” is entitled to legal protection.
As per the opinion of the International Court of Justice (“ICJ”) preamble ‘does not possess any obligatory force’ of its own. In a 1993 decision, the ICJ noted that member states “encapsulated” their “declarations, determinations, aims and objectives” into the U.N. Charter’s first article to avoid the problem of the preamble’s non-justiciability.
The preambular text, however, is not entirely impotent; it provides context as a basis of Convention interpretation. The Vienna Convention states, in article 31, that “meaning is to be given to the terms of the treaty in their context” and “the context for the purpose of the interpretation of a treaty shall comprise interalia the text, including its preamble .” In light of the preamble’s concern with the unborn “child,” it can be inferred that the unborn are guaranteed the rights of the child under the Convention.
However, in light of this ambiguity regarding the definition of child, the Convention has developed which considers that the rights of the mother supersede the right to life of an unborn child under the Convention. The law also affords a foetus limited right to protection, evidenced by the Committee on the Rights of the Child’s disapproval of the use of abortion as a contraceptive method.
CEDAW recognises the existence of an unborn by providing provisions that are for the protection of both mother and the foetus. Article 11(2)(d) of Convention on the Elimination of All Forms of Racial Discrimination says that mothers should be provided with special protection during pregnancy at work from anything harmful to them. Article 12(2) deals with provision of appropriate services and nutrition to women during pregnancy.
As per the definition under 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide is a crime under international law both in peace and in times of war and is defined as acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, including killing or seriously injuring members of the group, imposing measures indented to prevent births or forcibly transferring children.
From the very definition it is evident that, foeticide is a crime under the Convention. Also there have been many provisions for the pregnant women under the Convention, which implies the recognition of the rights of unborn.
- Pregnant women and nursing mothers who are aliens in a warring country must receive the same preferential treatment as nationals. (Convention IV, Art. 38, Sec. 5)
- An occupying power must not hinder any pre-existing measures in regard to food, medical care and special protection of benefit to women of children under(Convention IV, Art. 50)
- In internment camps, pregnant and nursing women must receive additional food, in proportion to their physiological needs. (Convention IV, Art. 89)
- The detaining power must work as quickly as possible to repatriate or release to their homes or to neutral countries pregnant women or mothers with infants or young children. (Convention IV, Art. 132and Protocol I, Art. 76, Sec. 2)
- When relief supplies are distributed to civilian populations, preference must be given to children, pregnant and nursing women. (Protocol I, Art. 69)
- In internal conflicts, the death penalty must not be carried out against pregnant women or mothers with young children. (Protocol II, Art. 6, Sec. 4)
African Charter on Human and Peoples’ Rights
The African Charter on Human and Peoples’ Rights (1986) in a 4(1), makes explicit reference to a pre-natal right to life. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003) in article 14 of the said Protocol, explicitly provides for “Health and Reproductive Rights”, and infers the protection of the unborn in that legal protection for the unborn is denied in the case of rape, incest, sexual assault and where the pregnancy endangers the mental and physical health of the mother or the life of the mother (a 14(2)(c)).
CHAPTER V: RECOGNITION OF UNBORN IN VARIOUS COUNTRIES
Scenario In USA
In United States, criminal codes are being restructured to protect the unborn from violent actions i.e ‘foeticide’. ‘Foeticide’ refers to an instance where the death of the unborn is caused by a person other than the mother (and without her consent). Thirty-five of the states in the US have statutes criminalising the killing of an unborn child outside the domain of legal abortions.However, while only some of these states provide complete protection for the unborn, all of them provide at least some protection. It is interesting (and also perplexing) that, irrespective of this development in criminal law, the US pioneered the “pro-choice” (pro-abortion) stance as reflected in the decision of Roe v Wade.The Unborn Victims of Violence Act is a United States law introduced into congress in 1999 which defines violent assault committed against pregnant women as being a crime against two victims: the woman and the foetus she carries. This law was passed in 2004 after the murder of Laci Peterson and the foetus she was carrying.
Scenario In England
According to English Common Law, the unborn have all the rights of the born, and these rights have been embodied in our Constitution in the 9th Amendment. All the rights in the Bill of Rights apply to the unborn, as well as the born. Until Roe v. Wade, these were rights protected by State laws, drawing upon English Common Law for their meaning and intent. But those State laws were abrogated and declared unconstitutional by the Supreme Court in Roe v. Wade, thus becoming matters of constitutional law.
Scenario In India
Section 13 of the Transfer of Property Act refers to ‘Transfer for benefit of unborn person’ wherein a property can be transferred to a child in the mother’s womb but not to one who’s not in the mother’s womb.
Section 20 of the Hindu Succession Act, 1956 recognises the rights of a child in the womb; wherein it states that “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.”
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. Explanation to Sec 6 of the Limitation Act,1963, mandates that for the purpose of that section a ‘minor’ includes a child in the womb.
AN UNBORN AS PERSON UNDER THE EYES OF LAW
A person before the law is someone who is recognised to be subject of the protection offered by the legal system and the responsibilities required by it. For example, a person before the law has the right to make agreements or contracts which courts will enforce and start proceedings before courts in cases where his or her rights have been violated.
From, the above International instruments it is quite clear that there is recognition of foetus in one way or the other, bringing it closer to the definition of person. But, then foetus cannot bear responsibilities or in legal terms duties. Although, it has rights, it does not have any duty. Hence, a foetus is a person before the law without any duties.
Even the killing of a child is not considered a murder under IPC in India. It is covered under a different form of crime i.e. foeticide or infanticide. The basic reason behind this being that for murder there needs to be a victim.
But, then the fact that most countries strongly discourage abortion and have penalising sentences against it, leads us to the conclusion that there may be life present in the foetus which these criminal codes intend to protect, that cannot be taken away by any other human being. Almost 25% of the countries have penalising abortion laws and have a strict ‘no-abortion’ policy.
A lady named Jennifer Johnson of Seminole County, Florida was convicted under a drug trafficking law in 1989. It was alleged that, in consuming cocaine during her pregnancy, she had delivered a controlled substance to a minor via the umbilical cord. She was sentenced to one-year in a drug treatment program, 14 years probation, and 200 hours of community service. Johnson appealed and Supreme Court of Florida overturned its decision to convict her in 1992. But on the other hand,in the case of Whitner v State, the Supreme Court of South Carolina held a mother to be criminally liable for conduct during pregnancy that endangers the life of her foetus. The mother was sentenced to eight years of imprisonment after she had used cocaine during her pregnancy. Where on one hand, a mother was charged with murder in 2004 by the Courts when she refused to undergo a caesarean section which resulted in one of the two in her twin pregnancy being stillborn, Courts have also proved that even a foetus has inalienable rights by appointing a legal guardian to protect the foetus of a developmentally-disabled rape victim in 2003, who was raped while living in a group home in Orlando, Florida. She later gave birth to a child in September 2003.
In the case of Manikuttan Vs. M.N. Baby, the Kerala High Court held that foetus is another life in the woman and it comes as a baby in the course of time and compensation was granted for the death of the unborn. However , the contrary view was taken by the Bombay and Himachal Pradesh High Court in the case of Margappa Shethappa Vadar Vs. Proctor and Gamble India and Rakesh Kumar Vs. Prem Lal respectively.
The fact that criminal prosecution is available against such foeticide and infanticide, including the mothers, and that the unborn are entitled to own property before they are born, proves the fact that despite the lack of duties, foetuses have been seen as a person under the legal systems and have been accorded maximum protection under them.
Although substantial development has taken place in international human rights law, the international community has not formally approached the legal status of the unborn as a matter of urgency, thereby possibly suggesting that there is a general disregard of the rights of the unborn. The “complexity” of the relevant issues and the fact that there are “disparate” views of the matter should not be thought to justify the failure to address the matter. Close analysis of the legal status and protection of the unborn in international law in general and many domestic legal systems suggests that the determination of when the entity becomes human is not left entirely to the mother (although this is the dominant approach), and that the matter is generally considered to be important. This sense of the importance of the matter should motivate the legal establishment to attempt to develop a deliberative platform on the legal status and protection of the unborn. This would be an informed and impartial framework based on the inclusion of all points of view and constructive communication among those who disagree with one another.
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