During the recent bail hearing at the Delhi high court for Jamia Millia Islamia student Safoora Zargar, presiding judge Rajiv Shakhdher had asked for the legal regime on the rights of an unborn child.
Zargar’s counsel, Nitya Ramakrishnan, prepared a note for the consideration of the court detailing the position in law – municipal and international – on the rights of the unborn child, and its independent ‘personhood’.
Zargar is pregnant and Ramakrishan had submitted that apart from the unwarranted nature of the police charges against her under the Unlawful Activities (Prevention) Act, her incarceration as an undertrial is both unnecessary and harmful to her health and the health of the foetus – which the state is duty bound to protect.
In the event, the high court granted bail without going into the merits as the Delhi Police, which had resisted the grant of bail all along, conceded the plea on humanitarian grounds when Justice Shakhdher took up the matter for hearing on Tuesday afternoon.
Zargar is one of several activists involved in the peaceful protests against the Citizenship (Amendment) Act against whom the police in Delhi and Uttar Pradesh have filed serious criminal charges under different sections of the law.
The Wire is publishing the note submitted by Nitya Ramakrishan (with minor editing) as it sheds light on a hitherto neglected aspect of the rights of women detainees and prisoners who happen to be pregnant.
Is the fetus a person? This is a question that has vexed moral philosophers and legal practitioners for many decades and in this context, the ‘viability’ of the fetus was a term that came to be. ‘Viability’ is primarily a medical assessment, simply stated, of the possibility of fetal survival outside of the mother’s body. The possibility or probability of the fetus surviving, with or without life support, has been the medical standard of ‘viability’.
The legal connotations have mainly arisen in the conflict between a mother’s assertion of her right to terminate a pregnancy and the state’s justification to legislate on the subject. Beginning with the celebrated case of Roe v. Wade (1972) decided by the US Supreme Court, fetal rights have generally been part of the discourse on abortion. By a majority, Roe v. Wade upheld in principle the mother’s right to terminate an unwanted pregnancy as part of her constitutional right to privacy, yet it recognised other interests including that of the State, in protecting life – of the fetus and of the mother. It ruled that these interests grew as the fetus approached and attained viability. To balance the competing interests, Roe v. Wade set stages to the decision:
1. For the stage prior to approximately the end of first trimester, the abortion decision and its effectuation must be left to the judgment of the attending physician of the mother;
2. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health; and
3. For the stage subsequent to viabililty, the State, in promoting of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for preservation of life and health of the mother
While being chary of specifying any definitive threshold of viability, the US Supreme Court reasoned that at 24-28 weeks the fetus could be said to be viable.
With advances in medical science, the threshold of viability was lowered both in medical and legal terms. The United States Supreme Court, in Planned Parenthood v. Casey (1992) upheld Roe v. Wade as far as the state’s interest in protecting the potential human in the fetus but rejected the trimester test of viability. Currently, 20-24 weeks is considered the point at which a fetus may be said to be viable, i.e., capable of survival outside of the mother’s body.
Safoora Zargar will complete 23 weeks of pregnancy as on June 22, 2020.
The Indian Supreme Court has also adopted the central principle of viability of a fetus as enunciated in Roe v. Wade, in paragraph 23 of its judgment in Suchita Srivastava v. Chandigarh Administration (2009).
As said earlier, the debate has arisen predominantly in the context of the mother’s right to abortion and the state’s regulation of her choice. This context is not germane to present case where the mother is ready, willing, and keen to bear the child. Yet, two principles emerge quite clearly and distinctly:
1. First, the safety, security, and personhood of the fetus is secondary only to the interest of the mother, and her health, depending upon the stage. The subordination of the fetus, even to the mother’s interest, is not absolute.
2. Second, jeopardy to the fetus can never be in the State’s interest. And, the life, health, and safety of the fetus, far from being in thrall to any act, decision, or policy of the State, is actually entitled to protection from the State. The State’s powers with respect to childbirth are all geared to protect and enhance life, and not to threaten
Independently of the aforesaid context, fetal rights have recognition in international and national law even if not always spelt out with such a nomenclature.
Fetal right to protection in international law
The Universal Declaration of Human Rights (the UDHR), which was adopted by the UN General Assembly on December 10, 1948, in its very first preambular paragraph recognises the inherent dignity and equal and inalienable rights of all members of the human family, without any of its affirmations being qualified by age or limited to the born.
The concern for an unborn child who is innocent of any wrongdoing is also evidenced by Article 6 of the International Covenant on Civil and Political Rights (the ICCPR) which puts a categorical bar on the execution of pregnant women.
In keeping with the spirit of the UDHR and the Declaration of the Rights of the Child 1959, the Convention on the Rights of the Child (the CRC) was adopted on November 20, 1989. It is imperative to highlight the relevant clauses of the CRC:
“Preamble – Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “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” [emphasis supplied]
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(d) To ensure appropriate pre-natal and post-natal health care for mothers;”
India signed the Convention on the Rights of the Child in 1992. It is settled law (Vishaka v. State of Rajasthan (1997) that international and human rights norms are to be read into our fundamental rights.
Indian domestic law on the personhood of the fetus
Indian domestic law recognises the personhood of an unborn child in many ways. The statutes that do so are summed up by the Delhi high court in Prakash & Ors. v. Arun Kumar Saini (2010) (a case relating to compensation for the death by accident for a child yet to be born), particularly in paragraphs 16 and 17 of its judgment, excerpts from which are quoted below:
“16. The rights of an unborn child are well recognized in various legal contexts which are as under: –
(i) Section 6 of the Limitation Act, 1963 provides that where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same period after the disability has ceased. Explanation to Section 6 reads thus:
Explanation: – For the purposes of this section, ‘minor’ includes a child in the womb.
(ii) Section 20 of the Hindu Succession Act, 1956 recognizes, the rights of a child in the womb. Section 20 reads thus:
Section 20. Right of child in womb:
A child who was in the womb at the time of the death of an intestate, and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.”
(iii) …( A quote from Mulla, omitted here)
(iv) In the Indian Succession Act, 1925, ‘minor’ is defined under Section 2(e), which reads as follows:
Section(2)(e) “minor” means any person subject to the Indian Majority Act, 1875, who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and “minority” means the status of any such person;”
Section 7 of the Indian Succession Act provides that the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled and in the case of a posthumous child, in the country in which his father was domiciled at the time of the father’s death. Section 112 of the Indian Succession Act recognizes the rights of a person coming into existence after the death of a testator.
(v) …(omitted here)
(vi) Sections 312 to 316 of the Indian Penal Code provide for punishment for the offences 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.
(vii to ix) …(omitted here)
(x) Black’s Law Dictionary refers to “rights of unborn child”, thus: “The rights of an unborn child are recognised in various different legal contexts;
e.g. in criminal law, murder includes the unlawful killing of a foetus (Cal. Penal Code Section187), and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. In addition, the child, if born alive, is permitted to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth, an action will lie for his wrongful death. While certain States have allowed recovery even though the injury occurred during the early weeks of pregnancy, when the child was neither viable nor quick, Sinkler v. Kneale, 401 Pa.267,167 A.2d.93; Smith v. Brennan, 31 N.J.353, 157 A.2d.497, other States require that the foetus be viable before a civil damage action can be brought on behalf of the unborn child.”
(xi) The legal status of unborn persons is discussed in Salmond on Jurisprudence, 11th Edition, at pages 354 and 355, the relevant portion of which reads as follows:
Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is nonetheless a real and present ownership.
A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth”. Thus, in the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of (1) the acquisition of property by the child itself, or (2) being a life chosen to form part of the period in the rule against perpetuities.”
The rights of the child in the womb, in the matter of succession, are well protected by laws of the land.
17. This Court is of the view that the rights of an unborn child are recognised in various different legal contexts; e.g. in criminal law causing death of foetus has been held to be an offence under Sections 312 to 316 of the Indian Penal Code, and the law of property considers the unborn child in being for all purposes which are to its benefit, such as taking by will or descent. This Court is in respectful agreement with the judgments of Andhra Pradesh High Court in the case of Oriental Insurance Co. Ltd. (supra) and Kerala High Court in the case of Manikuttan (supra), and holds that an unborn child aged five months onwards in mother’s womb till its birth is treated as equal to a child in existence. The unborn child to whom the live birth never comes is held to be a ‘person’ who can be the subject of an action for damages for his death. The foetus is another life in woman and loss of foetus is actually a loss of child in the offing. [emphasis supplied]. The appellants are, therefore, entitled to compensation for the loss of foetus.”
Even half a century earlier, in Jabbar & Ors. v. State(1965), the Allahabad high court, speaking through Justice M. H. Beg (as he then was) while upholding the conviction of the appellant under Section 304 A of the Indian Penal Code, for causing death of a child in mother’s womb held:
“15. As he then was an unborn child can be regarded as a living entity with a life of its own. The word “person” is defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as “an individual human being” or “a man, woman, or child”; and, secondly, as “the living body of a human being”. I do not think that it can be denied that an unborn child in advanced stages of pregnancy has a being or life of its own and that it has a body. It may be that its life and body are not independent of the mother’s existence so that the unborn child cannot be said to have a separate exist-once. The word “person” has not been defined in such a way as lo involve a separate existence or the living creature spoken of as “a person”. As there is no such technical definition, 1 prefer to adopt the ordinary meaning of the term “person” as including a “child” whether born or unborn. Even if the child is unborn and within the womb of the mother, it is capable of being spoken of as a “person” if its body is developed sufficiently to make it possible to call it a “child”. The post mortem report shows that the child had developed sufficiently to have an identity of its own as a child? That would, in my opinion, be enough to satisfy the definition of the term “person” as used in Section 304a, I.P.C.”
The concern for the life and safety of the fetus is also clear from the injunction against executing a sentence of death upon a pregnant woman in Section 416 Cr.P.C. as it originally stood. The mandatory prescription by a 2009 amendment that any death penalty on such a woman shall be commuted by the High Court, is a further recognition of the fetus’s right to its mother even when she is found guilty of the greatest crime.
Fetal rights and the mother’s imprisonment
While several prescriptions and exhortations exist in health-related documents for the care of the fetus, the issue has received particular attention in the context of the imprisonment of the mother. The dominant principle seems to be that imprisonment should be the last resort.
In a judgment dealing with the condition of children who are in jail because of their mothers’ imprisonment, the Supreme Court in R.D. Upadhyaya v. State of Andhra Pradesh (2007) after referring to the Draft Prison Manual framed by the ‘National Expert Committee on Women Prisoners’, headed by Justice Krishna Iyer, issued guidelines, at para 45 inter-alia directing that
“childbirth in prison should be avoided as far as possible and measures of temporary release/parole including suspended sentence should be made to enable expectant prisoner to have her delivery outside prison.”
The Gujarat high court in State of Gujarat v. Jadav @ Jatin Bhagvanbhai Prajapati (2016), speaking through Justice M.R. Shah (as he then was) even while convicting and sentencing in appeal, a woman to seven years imprisonment for a dowry death, simultaneously suspended her sentence for about ten months on account of her pregnancy.
It is respectfully submitted that the underlying principle behind all these rulings, guidelines and instruments is the welfare and safety of the fetus. The concern is that the fetus should receive the healthiest possible environment to develop and be born alive, and thereafter, receive the best possible nurture and care, integral to which is the mother’s mental and physical health. It is not a mere concern for the mother’s health. A pregnancy does make a woman vulnerable physically, but it is not an illness, which calls only for her protection for her own sake. The predominant concern is thus for the unborn child which is innocent of all wrongdoing and ought not be subjected to the distressful conditions that inhere in detention.
International instruments/resolutions and documents that frown upon imprisoning a pregnant woman
The recognition that imprisonment of a mother is hazardous to the unborn child is also found in several international resolutions/documents.
1. United Nations Rules for the Treatment of Women Prisoners and Non- custodial Measures for Women Offenders (a.k.a. the Bangkok Rules) adopted by the UN General Assembly by consensus in 2010:
Emphasises that, when sentencing or deciding on pretrial measures for a pregnant woman or a child’s sole or primary caretaker, non- custodial measures should be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent;
Rule 64: Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children.
Section C, 5 (f): the use of imprisonment for certain categories of offenders, such as pregnant women or mothers with infants or small children, should be restricted and a special effort should be made to avoid the extended use of imprisonment as a sanction for these categories
3. Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment. General Assembly Resolution 43/173, December 1988.
Principle 5.2: Measures applied under the law and designed solely to protect the right and special status of women, especially pregnant women and nursing mothers, children and juveniles, aged, sick, or handicapped persons shall not be deemed to be discriminatory. The need for, and the application, such measures shall always be subject to review by a judicial or other authority.
The following are Europe specific documents, but it is submitted that they are nevertheless relevant and instructive
4. Council of Europe Parliamentary Assembly Recommendation 1469 on Mothers and Babies in Prison
Recommendation 5.3: to recognise that custody for pregnant women and mothers of young children should only ever be used as a last resort for those women convicted of the most serious offences and who represent a danger to the community
Recommendation 58: to protect the health of the mother and of the newborn child pregnancy should be in principle an obstacle to incarceration, both pre-trial and post-conviction, [emphasis added] and pregnant women should not be imprisoned except for absolutely compelling reasons. When a woman in prison is found to be pregnant, the need for her imprisonment should immediately be reviewed and continue to be reviewed throughout her pregnancy. Pregnant women in prison should be considered for non-custodial measures throughout their remaining prison term.
Other jurisdictions and regional human rights instruments also recognise the need for fetal protection too.
The Arab Charter on Human Rights adopted in May 2004, though not yet in force, recognizes the inherent right to life of every human being. Article 7 of the Arab Charter further provides that
1. Sentence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime.
2. The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on a nursing mother within two years from the date of her delivery; in all cases, the best interests of the infant shall be the primary consideration.
The American Convention on Human Rights which entered into force in 1978 also contains the following provisions that relate to the right of the unborn child:
Article 1. Obligation to Respect Rights.
2. For the purposes of this Convention, “person” means every human being.
Article 3. Right to Juridical Personality.
Every person has the right to recognition as a person before the law.
Article 4. Right to Life.
1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.
The African Charter on Human and Peoples’ Rights entered into force in 1986 also mirrors such inclusive provisions and recognizes in Article 4 that “human beings are inviolable.” In this vein, the African Charter on the Rights and Welfare of the Child, entered into force in 1999, relies on the principles of the rights and welfare of the child enshrined in the CRC and adopts the definition of “child” as being “every human being below the age of 18 years.” It also provides the following provisions on the fetal right to protection:
Article 5. Every child has an inherent right to life. This right shall be protected by law. States Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child. Death sentence shall not be pronounced for crimes committed by children.
Article 30. States Parties to the present Charter shall undertake to provide special treatment to expectant mothers and to mothers of infants and young children who have been accused or found guilty of infringing the penal law and shall in particular:
(e) ensure that a death sentence shall not be imposed on such mothers.
Despite numerous judgments on prison reform generally and prison reform related to women, it appears that directives are observed more in the breach.
9. Ministry of Women and Child Welfare Report on Women in Prison– June 2018
Notes the severe lack of appropriate facilities for women in Indian prisons and recommends at 5.6.1 that, in case of pregnant prisoners, the provisions of the National Modern Prison Manual must be followed strictly to make arrangements for temporary release for delivery of children in a hospital outside the prison. Suspension of sentence may be considered in the case of casual offenders. Information about a woman’s pregnant status should also be made to the Court that has ordered detention, to enable the Court to grant bail (where appropriate) or modify the detention order as deemed necessary.
Fetal protection is an objective, that can best be served by precaution and care. That precaution would make pregnancy a major ground for releasing the mother on bail.