INTRODUCTION
“I feel the greatest destroyer of peace today is ‘Abortion’, because it is a war against the child… A direct killing of the innocent child, ‘Murder’ by the mother herself… And if we can accept that a mother can kill even her own child, how can we tell other people not to kill one another? How do we persuade a woman not to have an abortion? As always, we must persuade her with love… And we remind ourselves that love means to be willing to give until it hurts…”― Mother Teresa
‘Tort’ is a French term which means wrong. A tort can be defined as a civil wrong involving breach of duty and violation of one’s right, which gives rise to a cause of action and for which damages are recoverable[1]. When we talk about the rights of an unborn child, the most important question which arises is the need for striking a balance between the rights of the pregnant mother and the rights of the foetus. Different countries follow different system of laws, which deal with this issue in their respective ways.
There are some people who consider the mother and her foetus as inseparable and accord greater priority to mother’s rights over those of the foetus. On the other hand, there are people who prefer foetus’ rights. There are some who talk about the mother’s right to choose whether or not she wants to have a baby, whereas there are others who talk about the foetus’ right to life.
The main aim behind this assignment is to compare the laws on unborn child rights, with major focus in relation to abortion laws, in India and Philippines, try to understand the reasoning (emotional as well as legal perspectives) behind such laws and arrive at a plausible solution of this issue.
RIGHTS OF AN UNBORN CHILD UNDER PHILIPPINE LAW
Laws on Abortion and Rights of the Unborn, in Philippines, are covered under the Article II, Section 12 of the Philippine Constitution[2] and the Revised Penal Code of Philippines – Articles 256-259[3]. Section 12 of Article II of Philippine Constitution states that – “It (the state) shall equally protect the life of the mother and the life of the unborn from conception.” Articles 256-259 of the Revised Penal Code prevent any form of abortion in Philippines, whether intentional or not and also prescribe penalties and punishments for those who engage in the same. These laws ignore the fact situation that the birth of the child might lead to the death of the mother.
The rights which an unborn enjoys in Philippines are right to life, right to be supported, right to receive donations (the unborn legally represented by his/her parents), right to safety and welfare, right to inherit parents’ property, right to identity etc. The Responsible Parenthood and Reproductive Health Act of 2012[4] guarantees the “right to health”[5] and “the right to choose and make decisions”[6] to all its citizens. Moreover, it also guarantees elimination of laws which are discriminatory or infringe upon an individual’s right to reproductive health.[7] Despite these provisions, abortion has been completely banned. Overemphasis seems to have been laid on the rights of an unborn such that the right to life and health of the mother has come to be threatened.
RIGHTS OF AN UNBORN CHILD UNDER INDIAN LAW
The Rights, which an unborn is entitled to in India, are not as such laid down under any specific law but are mentioned in a few acts. For instance, the unborn enjoys a right to property of his parents under Section 13 of the Transfer of Property Act 1882[8] and right to life under Article 21 of the Indian constitution. However, this right to life is restricted to the extent as prescribed in The Medical Termination of Pregnancy (MTP) Act, 2002[9], which allows abortion under certain prescribed conditions like pregnancy dangerous to the mother, grave abnormalities in the foetus etc.
The abortion laws in India are also governed under Sections 312 to 316 of the Indian Penal Code, 1860[10]. These laws have tried to arrive at a middle ground wherein a balance is tried to have been maintained between the rights of the mother and those of the foetus. The right to life of the unborn has been subject to certain exceptions, one of which is serious detriment to the mother’s or foetus’ health. Moreover, the law has granted abortion rights in case of pregnancy caused due to rape. On the other hand, in order to protect the unborn, the law requires that the advice of one registered medical practitioner (in case the pregnancy period is less than 12 weeks) whereas the recommendation of two registered medical practitioners will be necessary if the abortion period is between 12-20 weeks, before which the abortion cannot be performed.[11]
INDIAN CASE LAWS GOVERNING UNBORN CHILD RIGHTS
Any person can be sued for causing pre-natal injuries to any minor.[12] In such cases, the law recognizes the right of the foetus to sue only after it is born with any deformities or by granting a fictional legal personality for the purpose of justice which has to be in accordance with the maxim “Nasciturus pro jam nato habetur”[13] which means that the foetus is deemed to be born when the question of his interests arise. Due the unavailability of any special Indian law on unborn child rights, courts base their decisions on English acts like Fatal Accidents Act[14], Workmen’s Compensation Act[15] or a Will[16].
Union Carbide Corporation v. Union of India
This is the Bhopal Tragedy case[17]. The facts of the case were that there was an accidental leakage of Methyl isocyanate from the premises of Union Carbide Corporation on the night of 2 December, 1984. Due to this leakage, an exothermic reaction occurred which killed over 20,000 and affected over 6,00,000. One of the important decisions made in this case was that those unborn children, whose deformities can be traced to the side-effects of the leakage, will be provided compensation on a case-to-case basis. This case is a representative of how the Indian courts give the required cognizance even to the rights of an unborn, whenever necessary.
Jabbar And Ors. v. State of Uttar Pradesh
Sarju, brother of one Jamna, worked under one Ishaq. Sarju was asked to carry 7 seers of limestone but he agreed to carry 5 seers from Saraiya Hill. Later that evening, Ishaq along with his brothers Jabbar and Habib, went to Jamna’s house. Here, Sarju was sitting there whereas Mrs. Pangoli, pregnant wife of Jamna was applying turmeric on his neck. Ishaq thrashed Sarju with two blows, who then ran away. After this, Jabbar asked Pangoli about her husband, about whom she did not know. Hence, Jabbar pushed her such that she fell on her belly and then kicked one side of her stomach as a result, the child born to them was born prematurely in the seventh month and died.
In the current case, the judge considered the meaning of the word “person” as mentioned in Section 304(a) of the Indian Penal Code 1860 as any child, be it born or unborn. Therefore, he was sentenced to 2 years’ rigorous imprisonment with a fine of Rs. 500 under Section 304(a) of the Indian Penal Code 1860. This case is a representative of the extent of judicial interpretation so as to uphold the ideals of “Justice, Equity and Good conscience”[18].
Said-ud-din v. Court of Welfare Commissioner Bhopal Gas Victims Tribunal
The appellant – S. Said-ud-din’s 4-month old daughter died on 24th December, 1986 due to the gas poisoning because her mother was a victim of the Bhopal gas tragedy. As a result of the poisoning, the child showed certain symptoms of MIC poisoning like breathlessness, pain in the eyes and skin rashes and eruption on the body, on the 6th day of her birth when she was examined by Dr. M.S.Thakur. The appellants had made a claim for Rs. 15 lakh but were awarded compensation of Rs. 1.5 lakh. In the above case, the emphasis on the right to life of an unborn child is apparently latent. As we can observe, cases in India are decided based on what actually is just and fair.
Laxmanrao Madhavrao v. State of Maharashtra and others
In the above case, the petitioner’s family constituted of 5 members and 2 conceived daughters on 2nd October, 1975 as the date appointed under the Section 6 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The petitioner claimed that the unborn children should also be included in their family unit, which would lead to the family’s entitlement to ceiling area of 18 acres or more. However, the court held that the unborn couldn’t be considered as a minor as defined in the aforementioned act because age of a child begins only when it is born. Moreover, a child, unborn till the appointed date, cannot be included in a ‘family unit’ in order to increase the ceiling area. In this case, the Bombay High Court has hereby upheld the Supreme Court’s view that an unborn is entitled to rights only after birth.
CONTRAST BETWEEN INDIAN LAW AND PHILIPPINE LAW
As it is evident from the above facts that there is a marked difference between the manner in which the rights of an unborn are dealt with by the Indian law and the Philippine law. The following are the differences:
1. One of the distinctive contrasts between the laws regulating the rights of an unborn in India and in Philippines is the manner in which Indian law has tried to bring about a balance between the rights of a mother and the rights of her foetus. Unlike Indian law, Philippine law seems to have overemphasized the rights of the unborn. The researcher believes so because the Philippine laws, despite acknowledging the rights of a mother, seem not to give her a choice with regards to the abortion of pregnancy by banning it totally. The mother would have to give birth to the foetus once she is pregnant even if it is dangerous for her/the foetus’ health.
2. Another crucial difference is that there is no Indian law which specifically deals with the rights of the unborn whereas the Philippines Constitution in its Section 12 of Article II grants right to life even to the unborn. Moreover, majority of the laws passed in Philippines take into account the rights of the unborn. Contrastingly, in India, apart from a few laws, the rights of the unborn are essentially determined by precedents and judicial discretion, keeping in mind that the decisions should be just and fair.
3. The laws in Philippines consider a foetus as a legal entity separate from that of the mother from the moment of its conception, thereby granting it the rights which it is entitled to. On the contrary, in India, the unborn are entitled to rights only after its birth, i.e., the unborn and the mother are considered a single entity until its birth.
4. Indian law, which grants abortion rights to women under prescribed conditions, has granted, to some extent, freedom of choice to have a baby or not for a woman which has completely been ruled out in Philippines. As a result, women have to undergo unsafe abortive methods, which kill over 1000 women per year and the rest are sentenced to imprisonment. This does not mean that Indian women do not undergo unsafe abortions; according to a study, about 56% of the total abortions performed in India are unsafe[19]; this might be due to lack of safe abortive techniques for all women or need for greater liberalization in-laws. The Supreme Court is now recognizing the need for permit of abortion even when the foetus is over 20-week-old, under exceptional situations like the case of Sarmishtha Chakraborty v. Union of India.[20]
CONCLUSION
Therefore, we can see how Indian law has evolved with time by striving to strike a balance between the rights of a mother and those of her foetus. Contrary to this is the Philippines law, which has overstressed on the rights of an unborn, who doesn’t exist presently, over the rights of the mother, who exists in the world. Despite the fact that the constitution guarantees right to life, health and choice to women, the reality is that when it comes to the question of the tussle between mother’s rights and foetus’ rights, it is the foetus which always wins, thereby rendering the rights of the mother dysfunctional. The researcher therefore, believes that there is an urgent need for revision in Philippines laws in order to curb the menace of maternal deaths due to unsafe abortion.
The Indian law, on the other hand, is being liberalized to a greater extent. This is evident from two cases Nikhil Datar v. Union of India[21] and Sarmishtha Chakraborty v. Union of India. In the former case, Niketa Mehta was 24-week pregnant, when she was informed about the serious abnormalities in the heart of the foetus and that its chances of survival were slim. However, due to the 20-week restriction on abortion as laid down under the MTP Act 2002, she couldn’t undergo the abortion because the Bombay High Court did not allow for the same. Later, in the latter case in 2017, the Supreme Court allowed Ms. Sarmishtha Chakraborty to abort her over 20-week old foetus as the foetus suffered from severe abnormalities. Thus, Indian law on rights of an unborn is essentially a court-made and court-interpreted law which is evolving over time in pursuit of true justice.
[1] Ratanlal & Dhirajlal, The Law of Torts, 4 (27 ed. 2016).
[2] The Constitution Of The Republic Of Philippines.
[3]https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PHL_revised_penal_code.pdf.
[4] https://www.pcw.gov.ph/law/republic-act-10354.
[5] Supra note 4.
[6] Supra note 4.
[7] Supra note 4.
[8]https://indiacode.nic.in/handle/123456789/2338?view_type=search&sam_handle=123456789/1362.
[9] https://indiacode.nic.in/handle/123456789/1593?view_type=search&sam_handle=123456789/1362.
[10]https://indiacode.nic.in/handle/123456789/2263?view_type=search&sam_handle=123456789/1362.
[11] The Medical Termination Of Pregnancy Act, 1971.
[12] Ratanlal & Dhirajlal, The Law of Torts, 67 (27 ed. 2016).
[13] Ratanlal, supra note 12, at 68.
[14] Ratanlal, supra note 12, at 68.
[15] Ratanlal, supra note 12, at 68.
[16] Ratanlal, supra note 12, at 68.
[17] Union Carbide Corporation vs. Union of India and Ors. (1989) 2 SCC.
[18] The principle “justice, equity and good conscience” is claimed to be originating from Roman Canonical laws and understood by English jurists in 16th century ( The Lex-Warrior Article Archive : Growth of justice, equity and good conscience, http://www.journal.lex-warrier.in/2015/06/09/growth-of-justice-equity-and-good-conscience/), Also see that, in India, the principle came to be used with the Regulation of 1781 by Sir Elijah Impey, who stated that “in all cases for which no specific directions were hereby given, act according to justice, equity and good conscience” (English Law in India, A.C.Banerjee).
[19] Behavioural shift, communication can raise awareness about safe abortions in India, H.T., March 29, 2017, at 9:23 IST.
[20] (2018) 13 SCC 339.
[21] Centre for Reproductive Rights, Datar v. Union of India, https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/Datar_v_India.pdf.
About Author – This article has been authored by Garvit Daga, the author is a Second-year BALLB student at NALSAR University of Law, Hyderabad. Areas capturing his interest are Contract, Criminal, Family and Tort law. He has an emerging interest in Tax laws. With profound interest in research, he has a keen insight on the minute details in the abovementioned laws.
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