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A pre-born has the right to live

En ventre sa merein law is a French phrase that means ‘in the mother’s womb,’ referring to a foetus in utero. It is commonly used in legal English. Many law cases worldwide have upheld that, legally, a foetus is recognised as a being that holds rights. Shouldn’t the foetus then have every right granted to a living being, including, most importantly, the right to life?

In the UK, the right to life is guaranteed by Article 2 of the Human Rights Act of 1998; in the US, this right is granted by the 14th Amendment; and in India, it is guaranteed by Article 21 of the Constitution. Why is it that only born persons have the right to life and not the pre-born? From the moment of conception, the pre-born has a developing body. Is a new-born baby fully developed? Not at all! It undergoes continuous development until death at any age. It grows in height and weight, teeth appear and fall off, hair cycles, nails grow rapidly, baby skin changes, genitals develop, the brain constantly evolves, and muscles develop. In just nine months, a newborn looks quite different from day zero.

Now consider the conception of the baby. Nine months before birth, the baby was conceived, becoming a single-celled zygote with its own unique identification. After two to three weeks of rapid cell division, the zygote became an embryo, and six weeks later, a foetus, becoming en ventre sa mere. Somewhere between days 18 and 22 of conception, the baby’s heart started beating. With each passing week, the foetus becomes a kicking, moving baby until it is born.

Remarkably, a pre-born baby is better able to grow and mature with minimal external assistance than a born baby. However, under the Indian Medical Termination of Pregnancy (Amendment) Act, 2021, the law allows a pre-born to be terminated on the grounds that continuation of the pregnancy would ‘involve a risk’ to the life of the pregnant woman, or that the ‘child, if born,’ could face a’substantial risk’ of ‘serious physical or mental abnormality,’ or because it was unwanted and contraceptives ‘failed.’ (Notice that the wording of the MTP (Amendment) Act categorically mentions ‘child’ and not ‘foetus’.) I argue that the pre-born baby should have special rights as well, especially the Right to Live. The foetus already has life; it now requires the right to live.

What implications would this Right to Live, if given to a pre-born baby, have on the existing amended MTP Act of 1971? Simply this—a revocation of the very Act itself. This is one way to reduce the almost 16 million abortions taking place annually in India. This would halt the genocide of the most innocent and helpless of lives. This would give out the reasonable and plaintive message from defenceless foetuses to the ‘#It’sMyBody’ women and the ‘#It’sYourBodyLady’ men that ‘#It’sMyBodyToo.’ Isn’t it always the weakest and most defenceless who should be granted the most protection, especially by law and the judiciary?

The amended MTP Act now allows legal abortions even up to 24 weeks (six months) in certain cases of pregnancy and seeks to make abortions even more easily procurable by mandating the opinion of only one doctor instead of two up to 20 weeks (five months).

The 52nd anniversary of the MTP Act 1971, on August 10, 2023, came and went without much notice. The number of innocent, helpless lives lost to the Act (which includes female foetuses in abundance) brings shame to our country, which the Father of our Nation, Mahatma Gandhi, intended to be a peace-loving and non-violent one. It is heartening to note, however, that in recent times, the Supreme Court of India has disallowed some appeals for late-term abortions on the grounds that the babies may be born alive.

(Published 13 November 2023, 21:06 IST)

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