An Abstract of Ph. D.

Thesis titled

Legal Personality of
Unborn: a Jurisprudential
Analysis

Submitted by
Sunanda Bharti

Under Supervision of
Dr Poonam Saxena
Faculty of Law
University of Delhi
Delhi-110007

2013
 CONTENTS OF ABSTRACT

Detailed Contents of the Thesis 3

Introduction 7

Problem, Related Literature and Objective 8

Hypothesis 9

Methodology 9

Limitation of study 9

Organisation of study 9

Bibliography 18

2
 Detailed Contents of the Thesis

Preface
Acknowledgements
Table of Cases
Abbreviations

Chapter 1: Legal Personality of Unborn/Foetus*

A. Introduction
• Legal Personality, a Maze
• Unique Case of the Unborn
• Debate Surrounding Personhood of Unborn
B. The Legendary Case of Roe
• Before Roe versus Wade
• Important Tort cases
• Important Criminal Cases
• Pollution Spread by Roe
• Degree of Protection Accorded to Foetus
C. On Unprotected Status of the Unborn—from injuries and
murder before viability
• Personhood to be acknowledged before Birth
• Social Recognition as mark of Separate Entity
• Employing Legal Fictions
• New issues on Foetus
• On Abortion issue being Peripheral
• Mothers Responsibility to Carry the Pregnancy Through
D. Conclusion

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

A. Legal Personality Begins at Birth
• Traditional Stand on Pre-natal injuries and Foetal Standing
B. Tracing Development of Recovery Rule for Pre-natal Injuries
from Denial in early Cases to their Acceptance in Current Law

3
 • The Times of Non-liability: Trilogy of Dietrich-Walker-Allaire
• The Stray case of Montreal Tramways
• Progress since Bonbrest
C. The Bane of Viability
• Solidification of Viability and Live Birth as Conditions of
Recompensability
• Viability as a Benchmark for Limiting Duty of Care
• Alternate Viewpoint on why Pre-natal injuries to be
Compensated for
• Tide against Viability
• Theories in the UK and USA on Recovery for Pre-Natal
Injuries
D. Associated Problems Concerning Recognition of Liability for
Pre-natal Injuries—The Rise of Wrongful Death (WD) Cases
• Viability in WD cases
• Argument for maintaining WD Action in India
• On Quantum of Compensation and Calculation
• Need for WD Legislation
• UK-Congenital Disabilities (Civil Liability) Act 1976
• Rationale behind Recovery in WD cases
E. Emerging Areas in Tort Law--Wrongful Birth (WB) and
Wrongful Life (WL)

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

of Prosecuting PW for foetal abuse
A. Foetal Rights in face of Abortion
• Probability of Coexistence of Abortion and Foetal Rights
• Demanding right of Abortion and Legal Personality for the
Unborn, whether Contradictory
B. Liability of Mother for Injury/Death to the Unborn
• Civil Law of Torts’—
• Re Pregnant Woman and WD
C. Re Whether WD should Cover Pre-Viable Foetuses

4
 • Criminal Law—
• UK Position
• Indian Position

Chapter 4: Confinement of Pregnant Women for Protection of

Unborn
Introduction
• Concept of Maternal Foetal Conflict
• Confinement of Women for Protection of Foetuses
• Ways of Regulating PWs Conduct
• Legislative Intervention
• Feminist Angle to the Problem
• Rights Discourse whether ill Equipped to understand or
Tackle the Problem:
• Foetal Abuse Laws Tricky to Formulate

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

Scenario
A. Introduction and Background
• Current Scenario
B. Legal Status in the US Criminal Law
• Unborn Victims of Violence Act, 2004
C. Legal Status in the UK Criminal Law
• Contribution of Courts
• Legislatures Contribution to Foetal Status in UK

Offences against the Persons Act, 1861

Abortion Act, 1967

Infant Life Preservation Act, 1929

Chapter 6: Criminal Law and Unborn: Indian Scenario

• Introduction
A. Legal Status of Foetus in Criminal Law in India
• PART I: Medical Termination of Pregnancy Act, 1971

Relevant Provisions Reproduced Verbatim

5

Abortion Right should Remain Severely Regulated in
India

Reforms Required in MTPA, 1971

Need for additional grounds for termination

Mental Retardation of PW and Foetal Rights

Keeping Right of Abortion and Demanding Legal
Personality for Unborn, not Contradictory

Other suggestions on reform
• PART II

Provisions relevant and relatable to the foetus under
IPC, 1860

Loopholes in Criminal Law
• PART III

Pre-Conception and Pre-Natal Diagnostic Techniques
Act, 1994
B. Conclusion

Chapter 7: International Law (IL) and Unborn

A. Scope of the Chapter
• Scope of IL vis-a vis the Unborn
B. International Law Instruments and Unborn
• I. International Instruments
• II. Regional treaties
• Case-law
C. Conclusion

6
Title of the Thesis: ‘Legal Personality of an Unborn: a
Jurisprudential Analysis’
Name of the Scholar: Sunanda Bharti
Name of the Supervisor: Dr. Poonam Saxena

INTRODUCTION

The legal understanding of the concept of ‘person’ or ‘personality’

revolves around possession of rights and capacity to discharge legal
duties. Hence, natural persons, that is, human beings are the prime
claimants of legal personality.

Legal personality of natural persons begins at birth and

extinguishes with death with the result that pre-birth, post death
stages are devoid of any legal persona.1 Understanding absence of
personality in the pre-birth stage (read foetal stage) poses problems
as the unborn being understood as incapable of exercising any legal
rights and not being duty bound towards anybody, gets a raw deal
when it comes to tortious acts committed towards it. There are
crimes committed against them that are not recognised as such and
hence make punishment impossible.2

For law, the problem is complicated by other disciplines like

theology and medicine maintaining the unborn to be ‘living’ entity.
The problem is whether unborn foetuses or a child in the mothers’
womb are legal persons or not? If personality begins only post birth,
would it be an exaggeration to say that an unborn is worse off in his
mother’s womb—susceptible and doomed to suffer all assaults
without respite, till of course, it takes its place amongst the living! It
is the submission in this research that the answer is ‘yes’. As a

1 This is per general common understanding; though there is a strong

difference of opinion here too which may be taken as exceptions.
2 For instance, threatening to kill a foetus is no crime. Similarly, simple or

even grievous hurt (in-fact anything that falls short of ‘causing miscarriage’) is
not an offence qua the unborn).

7
 general rule of law they are not legal persons though there are
exceptions, where the unborn is indeed given some modicum of legal
personality. Various aspects of this topic have been discussed in this
research modestly comparing the jurisprudence of USA, UK and
India in the regard.

PROBLEM, RELATED LITERATURE AND OBJECTIVE

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

unborn was the principle driving force behind writing on the aspect.
Throughout the research it was difficult to obtain hard copy written
material, which deals specifically with the proposed project. It is
hoped that the proposed research will fill this gap. It is also a modest
desire that the study proves useful to not only the academicians in
providing intellectual fodder, but also to lawmakers in formulating
laws pertaining to the rights of unborn.

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

of noted jurists, judges and academicians of eminence whose views
have been quoted in this study.

A number of online materials were available revolving around the

aspect of legal personality and the theories of personality and the
same have also been relied upon in this research.

Another reason was the fallacies and misconceptions that are

prevalent amongst people about the correct legal status of a foetus;
most bizarre being the notion that a foetus is a ‘person’ with rights
and duties—that it has the fundamental right to life and so on, while
the fact is that in most of the countries, ‘a doctor can lawfully, by
statute do to a foetus what he cannot lawfully do to a person who
has been born’3. This research is an endeavour to remove some
myths and highlight certain contradictions and/or mis-
interpretations which, over a period of time, have acquired the status

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

8
 of legally and morally correct view.

HYPOTHESIS

An unborn does not have any legal personality.

METHODOLOGY

The methodology adopted for this research was non-

empirical/doctrinal comprising a systematic study and analyses of
published research (journals, books and online sources). An attempt
has been made to identify commonalities and differences in the
treatment of an unborn under the legal systems of the USA, UK and
India.

LIMITATION OF STUDY

Although this research has reached its aims and conclusions,

nonetheless it has its share of limitations and shortcomings.

First of all, the research was perforce spread over various laws as
there are many that touch upon the unborn tacitly or patently. It was
humanely impossible to comprehensively cover each in the
comparative manner. Hence, the laws where the status of the unborn
is almost settled, such as laws of property and succession have not
been discussed in detail; they only find a peripheral mention. Laws of
Crime and Tort where there is immense scope of something radical
being accomplished for the foetus and its rights are primarily the
laws that form the core of the research.

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

alone written on it. Most of the literature touched upon the issue of
abortion, which is very different from the present study topic.
Consequently, huge reliance had to be placed on medical/legal
journals and reports (online or otherwise) to cull out and articulate
arguments.

ORGANISATION OF STUDY

In order to provide a clear visualization and better understanding

9
 of the topic of study, the entire work has been divided into seven (7)
chapters. For the sake of avoiding a hop scotch of ideas and
suggestions (because a number of laws across three nations are
being compared) suggestions for law reform required for India and
my conclusion has been discussed as a part of each chapter instead
of it being all at the end.

A brief introduction of each chapter follows:

Chapter 1: Legal Personality of Unborn/Foetus

On what basis are different entities ‘subjects’ of law? A bare

perusal of the nature of some of them indicates that there is no
common thread running through them; that they are not identical in
nature or scope of their rights. In-fact, in India, an entity like a HUF
may be a ‘person’ for taxation purposes, but is denied that legal
personality when it comes to entering into a partnership.4

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

have legal/juristic personality if it is amenable to the right-duty
correlation. A question that is relevant to answer in relation to
personality is-‘is there any parameter followed in granting the same?

The concept of legal personality has been puzzling and uncertain

since inception. Hence, the case-law regarding the same has also
been inconsistent. In 2001, the Harvard Law Review confirmed this
diagnosis and concluded that ‘the law of the persons is fraught with
deep ambiguity and significant tension; that the definitional problem
of the person was likely to become more acute with ‘technological
and economic progress; and further that the subject was so ‘grossly
under-theorised that it merited more attention.5

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

* The term unborn and foetus, though technically different, have been used
synonymously in this research.
4 See Agarwal and Co v Commissioner of Income-Tax, U.P 1970 SCC(2) 48.
5 ‘What we talk about when we talk about persons: The Language of Legal

Fiction’ (April 2001) 114(6) (notes) Harvard Law Review 1746, 1768.

10
 This chapter explores the treatment meted out to the unborn in
the Tort Law of the three countries. It also discusses the impact of
the Born Alive Rule, which was the result of unsophisticated medical
knowledge and a high degree of pre-natal mortality. Primitive medical
technology made it impossible to establish that a foetus was alive
until it was born.

‘The impossibility of determining whether and when a foetus was

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

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

an unborn were not recognised as a civil wrong.

Presently the medical and forensic science situation has changed

drastically by making it possible to determine with almost pointed
accuracy as to what caused the injury, when the deformity, if any,
set in and why or what was the cause of death. The author maintains
that law should translate the above development into granting legal
personality to the unborn from conception itself.

The chapter also elaborates upon the emerging areas of Tort law
that touch upon the unborn. Cases of wrongful death, wrongful life
and wrongful birth are new areas where new tort laws are emerging.
Courts have been grappling with a number of issues that were
hitherto unheard of for instance, right of action by the unborn
against the mother for failure to provide a healthy womb (say when
PW is a drug addict, an alcoholic etc); the right of action against the
mother for a botched self-abortion attempt resulting in temporary or
permanent disability of the child; or the right of action against the
attending physician for negligence.

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

‘Unborn Wrongful Death Act’ to permit wrongful death claims for the
death of an unborn child at any stage of development or gestation

6 Mamta K. Shah, ‘Inconsistencies in the Legal Status of an Unborn Child:

Recognition of a Foetus as Potential Life’ (Spring 2001) 931, 937-38.

11
 and even for in-utero wrongful deaths.7 This would place India not
only at par with the most advanced countries of the world, but also
introduce a change in one of the basic tenets of Tort law-survival of
cause of action post the victim’s death. The tortfeasor (wrongdoer)
would not be able to escape liability merely because he inflicted
injuries so severe that they resulted in the death of his victim in
utero. It would also mark as a watershed development for it would
mean acknowledgement of foetus as a legal person.

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

of Prosecuting PW for foetal abuse

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

hypocritical to advocate for foetal rights and personhood from the
time of conception on one hand and supporting abortion on the
other. For instance (and many such instances have been mentioned)
if the mother herself, being the host, is unwilling to carry on with the
pregnancy, there is absolutely no reason why the State should thrust
it upon her to carry it till full term. Such extreme detachment of the
mother from the unborn merits that foetal right to life be treated on a
lower footing than life of the expecting mother. Though foetus should
have a right to life, it must be life with dignity, a meaningful,
wholesome life which would not be possible if the mother herself has
not been able to form any emotional bonding with the foetus/would
be child. Here it is suggested that attempts must be made to provide
therapy and consultation to the PW to persuade her to keep the
baby.

The second half of the chapter probes into the possibility of

prosecuting PW for foetal abuse leading to wrongful deaths (WDs).
Though pregnant women have been conventionally kept immune
from WD claims, there is no reason why, in proper cases, the mother

7 This would effectively do away with viability and also the requirement of
live birth for WD claims.

12
 should be excluded from being liable for the said death.8 In fact in
repeated cases of substance abuse9 that results in death of the
foetus, it should be employed to set an example. Also, if the State can
do as much as to enter a very private domain of depriving the mother
a choice of whether she should keep the child or not, for several
reasons10, the State can very well regulate the pregnancy further, in
order to protect potential life and its rights.

Chapter 4: Confinement of Pregnant Women for Protection of

Unborn

As per Rosamund Scott, ‘maternal foetal conflict concerns two

main senses in which a PW may cause pre-natal harm. First, she
may refuse medical treatment, caesarean or other surgery...Second,
aspect of her daily life may be detrimental to the well-being of her
unborn child such as smoking, consumption of alcohol or drug
taking or for that matter failure to take care in crossing a road.’11

The conflict between the rights of women and unborn take an ugly
turn when one speaks of confinement of women for protection of
their foetuses. The very thought seems perverse because we delve
into the negative aspect of the rights discourse—rights are in modern
times used as weapon to correct moral depravity. The relationship
between the mother and her foetus, particularly the aspect of
maternal care towards the unborn is more a matter of course than

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

accidental deaths from grossly negligent deaths.

9 The World Health Organisation (WHO) defines Substance Abuse as: the

harmful or hazardous use of psychoactive substances, including alcohol and

illicit drugs.
10 For instance in India, apart from numerous holistic and religious

reasons, prevention of sex selective abortions is one of the major concerns

why abortion has not been given a free way. Despite protests and demands
from pro-choice feminist circles, abortion remains heavily regulated and
circumscribed through the Medical Termination of Pregnancy Act, 1971.
Hence, India is by and large a pro life country more by compulsion of societal
and religious dogmas and practices than by choice. In the USA and the UK,
though abortion laws are lenient than that of India, there are regulations
pertaining the same; it is not a lawless issue.
11 Rosamund Scott, ‘Rights, Duties and the Body: Law and Ethics of the

Maternal Foetal Conflict’ (2002) 35 Hart Publishing 14.

13
 ‘rights’. Thus, in case of PW-foetal relationship, what essentially was
a part of maternal responsibility and innate to motherhood12 gets
reduced to rights and becomes a matter of legal duty rather than a
moral responsibility.

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

debasement of the relationship from both sides--the mother refuses
to alter her lifestyle of addiction for the sake of the unborn upon
which the latter is up in arms against the former with the charge of
abuse.

This chapter maintains that the rights discourse is ill equipped to

understand the problem, as law cannot be perceived as the panacea
of all ills.

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

Scenario

This chapter analyses the status of the unborn in Criminal Law

and seeks to answer certain basic questions such as whether a baby
who is born alive but dies some time afterwards from a pre-natal
injury, has any respite under Criminal Law (more specifically
whether it can be a victim of homicide). If yes, whether viability plays
a role in inculpating the perpetrator or whether injuries inflicted in
the pre-viable stage also merit retribution.

In the USA, because of the efforts of the Judiciary and also the
Legislature13, the tendency towards recognising foetal rights in the
arena of Criminal Law has seen an upward trend. The federal
‘Unborn Victims of Violence Act 2004’ (UVVA, 2004) (more commonly
known as ‘Laci and Conner’s Law’14) recognize an unborn child as a

12 As automatic care for the entity in the womb.

13 The Unborn Victims of Violence Act 2004 was enacted by the Legislature
amending Title 18 of the United States Code by inserting a new Chapter--90A
that entails section 1841 – protection to unborn children.
14 The unique name comes from the names of the victims--a pregnant Laci

Peterson of California who was eight months pregnant with a son who was to
be named Conner. She was murdered in 2002 by her husband, Scott
Peterson, in that pregnant stage.

14
 separate victim of criminal violence and treat the killing of an unborn
child as a form of homicide.

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

but it does so only vaguely and coincidentally and not cogently and
directly.15 Most of the times, its regard for the foetus is to protect it
through the PW, as her adjunct. The focus is on the requirement of
being born alive. Normally, the aspect of viability or quickening
(crudely speaking) is also added as a criterion to ascertain the
offenders’ liability. Meaning, any pre-natal injury to the foetus would
be a criminal offence only after it has attained viability and provided
it is born alive. Once this happens, even if it dies after one miniscule
second, the requirement of Criminal Law to inculpate the offender
would be satisfied. Conversely, there would be no crime committed
under Criminal Law if the injury happens before viability or if the
injury happens after viability but the pregnancy does not result in
live birth (it is stillborn).

Chapter 6: Criminal Law and Unborn: Indian Scenario

The chapter attempts to appreciate the legal position of the

unborn in three Indian legislations viz. the Medical Termination of
Pregnancy Act, 1971 (MTPA, 1971), Indian Penal Code 1860 and the
Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994
(PCPNDT 1994) in that order. The last legislation has been briefly
mentioned. The chapter has been divided into three parts
accordingly.

This thesis seeks to establish that in order to acknowledge foetal

personality in Criminal Laws, it is necessary to criminalize that
conduct which injures or causes death of an unborn child so that the
unborn gets protection from conception until birth. In the Indian

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

15
 context, it translates into amending the IPC, 186016 to include
culpable homicide, murder, all kinds of hurt etc and attempts thereof
as applicable to the unborn. This may be effectuated by specifically
mentioning that the term ‘person’ in the Code includes an unborn
child at every stage of gestation from conception until birth.

After going through the various provisions of law revolving around

the foetus in India, four stems that can be easily identified where the
Criminal Law, whether it is a general Criminal Code17 or a specific
criminal law18 does not come to the rescue (though it does so for an
adult). They are:

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

(2) it is not necessarily an offence to injure a foetus19,
(3) it is not necessarily an offence to kill a foetus.20 This is subject to the
qualification of legal abortions.21
(4) it remains arguable whether it is a criminal offence to cause the
foetus injuries from which it dies after being born alive.22

16 Particularly Chapter 16 dealing with offences against the human body.

17 That is the IPC, 1860.
18 Like the MTPA, 1971 in India or the Abortion Act, 1967 of the UK.
19 Unless the injury is done with intent to procure a miscarriage...see

details later...At this point, it must be mentioned and underscored that in this
segment the author is not dealing with civil liabilities/tort action that may
arise in case of pre-natal injury to the foetus. The probe here is whether the
Criminal Law declares it to be an offence or not.
20 Sections 312 (causing miscarriage), 313 (causing miscarriage without

woman’s consent)-315 (preventing the child from being born alive or causing
it to die after birth), and 316 (causing death of quick unborn child) do provide
some instances which offer some protection to the unborn by providing for
some punishment to the perpetrator in some instances. In the UK some
protection is offered by the Offences Against the Person Act 1861, ss 58 and
59 (unlawfully procuring a miscarriage) and Infant Life Preservation Act 1929,
s 1 (child destruction). The USA is on a different footing especially ever since
the passing of the UVVA, 2004.
21 This is not the same as ‘on demand’ but is meant to cover limited

abortion rights of the type recognized in the Abortion Act 1967 (as amended
by the Human Fertilisation and Embryology Act 1990), the precondition for
which is that the woman requests/agrees. The thought that a foetus might be
aborted contrary to the woman’s wishes (for example, on eugenic grounds)
would probably be regarded as repugnant by most women and men.
22 Glanville Williams, Textbook of Criminal Law (2nd edn, Stevens & Sons

Ltd 1983) 289. The matter still remains arguable.

16
Chapter 7: International Law (IL) and Unborn

The chapter investigates briefly whether International Law

protects the unborn child, meaning whether it has been treated as an
independent entity, whether live birth, viability etc are also a
requirement in the international scenario or whether in utero stage is
protected from assaults and death.

CONCLUSION

The work of this thesis primarily was conceptual analysis of

whether an unborn is a legal person or not. A part of the conclusion
derived is that there is an aura of strange vagueness and
discomfiture (in the Legislature and Judiciary of India and the UK, if
not the USA) surrounding the question making it difficult to arrive at
a logical conclusion. Nonetheless, the author maintains that a
conclusive decision regarding the same is not only necessary but of
immense practical importance because it would decide the ways in
which and the degree to which, law would interact and protect the
unborn, if at all.

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

and schemes for the welfare of PW and unborn/newborn are
conceptualised and implemented by the government23. The intention
behind such schemes is to ensure protection to the PW so that she is
able to carry her child to term in a safe and healthy environment. As
a natural culmination of this effort, it is only logical that not only the
PW but also the unborn be legally protected, and perpetrators of
crimes/torts against unborn children be held accountable for their
acts in law.

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

in Orissa for the welfare of PW and newborns.

17
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Liability’ in JD Butler and DF Walbert (eds), Abortion, Medicine
and the Law (3rd edn, New York: Facts on File 1986).

• Smith J and Hogan B, Criminal Law (6th edn, Butterworths

1988) 310-11.

• Stone J, The Province and Function of Law: Law as Logic Justice

and Social Control-a Study in Jurisprudence (William S Hein & Co
1973).

• Tur R, ‘The ‘person’ in law’ in A. Peacocke and G. Gillett (eds),

Persons and Personality: A Contemporary Inquiry (Oxford: Basil
Blackwell 1987) 123.

• Williams G, Textbook of Criminal Law (2nd edn, Stevens & Sons

Ltd 1983) 289.

ENCLYCLOPEDIAS
• The Philosophy of Law: An Encyclopedia (1999) 300.

ARTICLES
• ‘Legal Status of Infant En Ventre Sa Mère’ (Winter 1950) 17(2)
The University of Chicago Law Review 395-400.

• ‘Maternal Rights and Foetal Wrongs: The Case against the

Criminalization of ‘Foetal Abuse’’ (March 1988) 101(5) (Notes)
Harvard Law Review 994, 1009.

• ‘Rethinking (M)otherhood: Feminist Theory and State Regulation

of Pregnancy’ (April 1990) 103(6) Harvard Law Review 1325,
1326.

20
• ‘The Estate of an Unborn Child Has a Cause of Action for
Wrongful Death: O’Neill v Morse’ (March 1972) 70(4) Michigan
Law Review 742.

• ‘What we talk about when we talk about Persons: The Language

of a Legal Fiction’ (April 2001) 114(6) Notes: Harvard Law Review
1746, 1768.

• Alghrani A, Brazier M, ‘What is it? Whose it is?: Re-positioning

the foetus in the context of research’ (2011) 70(1) Cambridge Law
Journal 51.

• Annas GJ, ‘Pregnant Women as Foetal Containers’ (1986) 16(6)

The Hastings Center Report 13.

• Bansal A and Bharti S, ‘Health Interests of Foetus and Expectant

mother: Visit Abortion Laws and Surrogacy’ (2008) 42 JCPS 1.

• Chavkin W, ‘Drug Addiction and Pregnancy: Policy Crossroads’

(1990) 80 American Journal of Public Health 483.

• Chavkin W, ‘Mandatory Treatment for Drug Use During

Pregnancy’ (1991) 266 JAMA 1556, 1559.

• Copelon R and others, ‘Human Rights Begin at Birth:

International Law and the Claim of Foetal Rights’ (2005) 13(26)
Reproductive Health Matters 120-9.

• Davis NA, ‘Interests and Sentience: Life Before Birth: the Moral
and Legal Status of Embryos and Foetuses’ (1994) 24(6) Hastings
Center Rep 36-7.

• Dr Yadav M and Dr Kumar A, ‘Medical Termination of Pregnancy

(Amendment) Act, 2002-An Answer to Mother’s Health & ‘Female
Foeticide’’ (2005) 27(1) Journal of Indian Academy of Forensic
Medicine.

• Feinberg, ‘Autonomy, Sovereignty, and Privacy: Moral Ideas in the

Constitution?’ (1983) 58 Notre Dame Law Review 445, 454.

• Finn L, ‘It’s for (y)our own good: an analysis of the discourses

surrounding mandatory, unblinded HIV testing and newborns’
(1998) 19(2-3) Journal of Medical Humanities 133–62.

• Fischer JM, ‘Abortion and Self-Determination’ (1991) 22(2) J Soc

Philos 5-13.

• Forsythe CD, ‘Homicide of the Unborn Child: The Born Alive Rule
and other Legal Anachronisms’ (1987) 21 Valparaiso University
Law Review 587.

21
• Fortin JES, ‘Legal Protection for the Unborn Child’ (1988) 51(1)
The Modern Law Review 54-83.

• Fovargue S and Miola J, ‘Policing Pregnancy: Implications of the

Attorney-General’s Reference (No. 3 of 1994)’ (Autumn 1998) 6
Medical Law Review 265.

• Gal & Sharpless, ‘Foetal Drug Exposure-Behavioral

Teratogenesis’ (1984) 18 Drug Intelligence & Clinical Pharmacy
186, 188-89.

• Gallagher J, ‘Pre-natal Invasions & Interventions: What’s Wrong

with Foetal Rights’ (1987) 10 Harvard Women's Law Journal 9,
10-14.

• Gordon DA, ‘The Unborn Plaintiff’ (Feb 1965) 63(4) Michigan Law
Review 588.

• Gough S, ‘Pre-natal injury and Homicide Following Attorney-

General’s Reference (No 3 of 1994)’ (1999) 62 Modern aw Review
128.

• Green L, ‘Foreseeability in Negligence Law’ (1961) 61 Columbia

Law Review 1401, 1407.

• Grubb A, ‘Detention and Treatment (Competent Adult): Pregnant

Woman and Unborn Child-Winnipeg Child and Family Services’
(1999) 7(1) Medical Law Review 88-92.

• Gulino F, ‘Legal Duty to the Unborn Plaintiff: is There a Limit?’

(1978) Winter 6(2) Fordham Urban Law Journal 217-50.

• Herbert B, ‘Foetal Protection Conceals Real Agenda’ (1998)

Milwaukee Journal Sentinel 12.

• Holmes OW, ‘The Path of the Law’ (1897) 10 Harvard Law Review
457, 469.

• Hursthouse R, ‘Virtue Theory and Abortion’ (1991) 20 Philosophy

and Public Affairs 237-238.

• Janssen ND, ‘Foetal Rights and the Prosecution of Women for

using Drugs during Pregnancy’ (2002) 48 Drake Law Review 741.

• Johnsen DE, ‘The Creation of Foetal Rights: Conflicts with

Women's Constitutional Rights to Liberty, Privacy, and Equal
Protection’ (1986) 95(3) The Yale Law Journal 599-625.

• Keown J, ‘The Scope of the Offence of Child Destruction’ (1988)

104 Law Quarterly Review 120.

22
• Kerr, ‘Pre-natal Fictions and Post Partum Actions’ (1997) 20
Dalhousie Law Review 240.

• Kester CM, ‘Is There a Person in that Body?: an Argument For the
Priority of Persons and the Need For a New Legal Paradigm’
(1994) 82(4) Georgetown Law Journal 1643-87.

• Klasing MS, ‘Death of an Unborn Child: Jurisprudential

Inconsistencies in Wrongful Death, Criminal Homicide, and
Abortion Cases’ (1995) 22(3) Pepperdine Law Review 933-79.

• Krasevac EL, ‘The Tension Between Individual and Political

Ethics: Morality, Public Policy, and Abortion in the United States’
(1996) 63(3) Linacre Q 14-22.

• Lawson FH, ‘The Creative Use of Legal Concepts’ (1952) 32 New

York University Law Review 914.

• Leventhal CL, ‘The Crimes Against the Unborn Child Act:

Recognizing Potential Human Life in Pennsylvania Criminal Law’
(1998) 103 Dickinson Law Review 173, 177.

• Logli P, ‘Drugs in the Womb: The Newest Battlefield in the War on

Drugs’ (1990) 9 Criminal Justice Ethics 23-29.

• Losco J and Shublak M, ‘Paternal-Foetal Conflict: An

Examination of Paternal Responsibilities to the Foetus’ (Feb
1994) 13(1) Politics and the Life Sciences 63-75.

• Massing, ‘The Two William Bennetts’ (1990) New York Review of

Books 29.

• Naffine N, ‘Who Are Law’s Persons? From Cheshire Cats to

Responsible Subjects’ (May 2003) 66(3) Modern Law Review 348.

• O’Donovan K, ‘Taking a Neutral Stance on the Legal Protection of

the Foetus. Vo v France’ (2006) 14(1) Medical Law Review 115-23.

• Parness J, ‘Crimes against the Unborn’ (1985) 22 Harvard

Journal on Legislation 97-172.

• Peach LJ, ‘From Spiritual Descriptions to Legal Prescriptions:

Religious Imagery of Woman as ‘Foetal Container’ in the Law’
(1994) 10 Journal of Law and Religion 73, 76.

• Pearl DS and Grubb A, ‘Protecting the life of the unborn child’

(1987) 103 Law Quarterly Review 341.

• Peaslee, ‘Multiple Causation and Damage’ (1934) 47 Harvard Law

Review 1127.

23
• Pedain A, Review of Rights, Duties and the Body. Law and Ethics
of the Maternal-Foetal Conflict, by Rosamund Scott (2003)
Cambridge Law Journal.

• Pickworth E, ‘Substance Abuse in Pregnancy and the Child Born

Alive’ (1998) 27(4) Anglo-American Law Review 472.

• Robertson J & Paltrow L, ‘Foetal Abuse: should we recognise it as

a crime?’ (1989) 75 ABA Journal 39.

• Robertson JA, ‘Procreative Liberty and the Control of Conception,

Pregnancy, and Childbirth’ (1983) 69(3) Virginia Law Review 405.

• Robertson Jr. HB ‘Toward Rational Boundaries of Tort Liability

for Injury to the Unborn: Pre-natal Injuries, Preconception
Injuries and Wrongful Life’ (Jan 1979) Duke Law Journal 1427.

• Ross SL, ‘Abortion and the Death of the Foetus’ (1982) 11(3)
Philosophy and Public Affairs 232-45.

• Rubenfeld J, ‘On the Legal Status of the Proposition that ‘Life

Begins at Conception’’ (1991) 43 Stanford Law Review 607.

• Scott R, ‘Rights, Duties and the Body: Law and Ethics of the
Maternal Foetal Conflict’ (2002) 35 Hart Publilshing 14.

• Shah MK, ‘Inconsistencies in the Legal Status of an Unborn

Child: Recognition of a Foetus as Potential Life’ (Spring 2001)
931, 937-38.

• Shaw M, ‘Conditional Prospective Rights of the Foetus’ (1984) 63

Journal of Legal Medicine 63-116.

• Siano JR, ‘A Woman’s Right to Choose: Wrongful Death Statutes

and Abortion Rights -Consistent at Last’ (1998) 19 Women’s
Rights Law Reporter 289.

• Sichel DL, ‘Giving Birth in Shackles: A Constitutional and

Human Rights Violation’ (2008) 16(2) Journal of Gender, Social
Policy & the Law 223-255.

• Siddhivinayak Hirve, ‘Abortion Policy in India: Lacunae and

Future Challenges’ (May 2004) Centre for Enquiry into Health
and Allied Themes (CEHAT) 9 (policy review).

• Stewart, ‘The Case of the Pre-natal Injury’ (1963) 15 University of

Florida Law Review 527, 530.

• Temkin J, ‘Pre-Natal Injury, Homicide and the Draft Criminal

Code’ (1986) 45 Cambridge Law Journal. 414.

24
 • Thomson JJ, ‘A Defense of Abortion’ (1971) 1 Philosophy and
Public Affairs 47.

• Thornton ET and Paltrow L, ‘The rights of pregnant patients:

Carder case brings bold policy initiatives’ (1991) 8(5) HealthSpan
10-16.

• Wellman C, ‘The Concept of Foetal Rights’ (Jan 2002) 21(1) Law

and Philosophy 67-68.

• Wells C and Morgan D, ‘Whose Foetus Is It?’ (1991) 18(4) Journal

of Law and Society 431-447.

• Whitfield A, ‘Common Law Duties to Unborn Children’ (1993) 1(1)

Medical Law Review 28-52.

• Winfield, ‘The Unborn Child’ (1942) 4 Toronto Law Journal 278,

293.

OFFICIAL PUBLISHED SOURCES/REPORTS

• Handbook on PC PNDT Act, 1994 and Rules with Amendments,
Ministry of Health and Family Welfare, (2006 GOI) 21.

OTHER PUBLISHED SOURCES

• American Medical Association Board of Trustees Report, ‘Legal
Interventions During Pregnancy: Court Ordered Medical
Treatment and Legal Penalties for Potentially Harmful Behaviour
by Pregnant Women’ (1990) 264 JAMA 2663, 2667.

• Centre for Reproductive Rights, ‘Punishing Women for Their

Behaviour During Pregnancy: An Approach That Undermines
Women’s Health and Children’s Interests’ (September 2000).

• National Association for Perinatal Addiction Research and

Education (NAPARE) Policy Statement No 1, ‘Criminalization of
Pre-natal Drug Use: Punitive Measures Will Be Counter-
Productive’ (July 1990).

• Siddhivinayak Hirve, ‘Abortion Policy in India: Lacunae and

Future Challenges’ (May 2004) Centre for Enquiry into Health
and Allied Themes (CEHAT) 9 (policy review).

ELECTRONIC SOURCES
• Bonavoglia A, ‘The Ordeal of Pamela Rae Stewart’ (1987) 16(1-2)
PubMed ID 11649978
<http://www.ncbi.nlm.nih.gov/pubmed/11649978> accessed 15
April 2013.

25
 • Bracton, Folio 121
<http://hlsl5.law.harvard.edu/bracton/>accessed 21 April 2013.

• Johnston R Wm, ‘India abortions and live births by state and

territory 1971-2011’ (Last updated 17 October 2012)
<http://www.johnstonsarchive.net/policy/abortion/india/ab-
indias.html> accessed on 11 March 2013.

• Justinian I, The Digest

<http://www.constitution.org/sps/sps.htm> accessed 15 April
2013.

• Model Legislation & Policy Guide 2011, Americans United for Life
<www.AUL.org/>accessed 22 January 2013.

• Model Legislation & Policy Guide 2012, Americans United for Life
<www.AUL.org/>accessed 22 January 2013.

• National Conference of State Legislatures (NCSL) database

< http://www.ncsl.org/> accessed May 15, 2013.

• See National Conference of State Legislatures (NCSL) database

<http://www.ncsl.org/> accessed May 15 2013.

• Universal Declaration of Human Rights 1948

<http://ccnmtl.columbia.edu/projects/mmt/udhr/article_3.html
>accessed 06 May 2013.

LEGISLATIONS
USA
• Title 18 US Code, Chapter 90A, s 1841(d).

• Unborn Victims of Violence Act 2004.

UK
• Abortion Act 1967.

• Congenital Disabilities (Civil Liability) Act 1976.

• Human Fertilization and Embryology Act 1990.

• Infant Life Preservation Act, 1929.

• Offences against the Person Act 1861.

INDIA
• Constitution of India

• Income Tax Act, 1961.

• Indian Copyright Act 1957.

26
 • Indian Penal Code, 1860.

• Limitation Act, 1963.

• Medical Termination of Pregnancy Act, 1971.

• Pre-Conception and Pre-Natal Diagnostic Techniques Act,

1994.

INTERNATIONAL LAW
• Convention for the Protection of Human Rights and
Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 3.

• Convention on the Rights of the Child (adopted 20 November

1989, entered into force 2 September 1990) arts 6(1), (2)
(CRC).

• International Covenant on Civil and Political Rights (adopted

16 December 1966, entered into force 23 March 1976) 999
UNTS 171 (ICCPR).

• United Nations Safeguards Guaranteeing Protection of the

Rights of Those Facing the Death Penalty 1984, Article 3.

• Universal Declaration of Human Rights (adopted 10 December

1948 UNGA Res 217 A(III) (UDHR) art 3.

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