Blackstone - "Qui in utero, est pro jam nato habetur quoties de ejus commodo quaeritur: One who is in the

womb is held as already born, whenever a question arises for its benefit." Right to property was a fundamental right , now a legal right.

http://archive.deccanherald.com/Deccanherald/nov32006/realty133172006112.asp Generally speaking, property cannot be transferred nor an interest created therein in favour of a person not in existence. However, there are certain exceptions to this general principle. They are dealt with, in Section 13,14 and 20 of the Transfer of Property Act,1882. T P ACT, 1882: Section l3 of the Act deals with the transfer of property for the benefit of unborn persons. According to this Section where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer. The interest created for the benefit of such a person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property. Thus, the interest of the unborn must be for the whole remainder and it is not permissible to confer an estate for life on an unborn person. For example, if A transfers his property to B in trust for A and his intended wife successively for their lives and after the death of the survivor, for the eldest son of the intended marriage for life and after his death for A's second son, the interest created for the benefit of the eldest son does not take effect because, it does not extend to the whole of A's remaining interest in the property. Further the intended transfer in favour of As first and the second son is opposed to public policy since it could prejudice the other relations. To make a transfer in favour of unborn persons valid, the prior interest created by the transfer should not be contingent but vested interest. In the instant case, the possibility of A getting male children could be a remote possibility and can only be termed as a contingency. Take another example, under a deed of settlement if an interest is created in favour of the children of a person and the interest too would take effect on the death of that person, then till the death of that person the interest of the children would be contingent. To make a transfer of property in favour of unborn persons to be valid there has to be a prior interest created by the very transfer. It may be noted that a vested interest does not imply immediate enjoyment. It is not permissible under law to change the rule of succession under the colour of fictitious endowment.

Further, a life-interest holder cannot defeat the interests of the unborn person by transferring the life interest to a third person. Gifts Once a gift to an unborn person is found to be valid under section 13 of the transfer of Property Act, it is not permissible to defeat such interest and the unborn person acquires a vested interest on his birth. Similarly, the prior disposition or transfer would not be affected if a condition subsequent becomes inoperative. Section l4 of the Transfer of Property Act, is also relevant and it deals with the rule against perpetuity. While under sec l3 of the Act, the transferor is not permitted to transfer anything less than his whole or entire interest in the property in favour of unborn persons with prior interest created in the same transfer, the rule against perpetuity [Sec.14] prohibits the creation of certain remote interest in the immovable property so as to last for one or more existing lives plus l8 years. However, the stipulation relating to renewal of lease is not regarded as transferring any right in the property and hence is not hit by sec.l4. Similarly, a contract for sale does not create any interest in favour of the prospective purchaser and does not come within the purview of sec.l4 while a covenant for resale or for redemption of a mortgage stands on a different footing. The object of rule of perpetuity is to restrain the creation of future conditional interest in property. The rule of perpetuity is concerned only with the rights of property and does not affect the making of contracts which do not create rights of property. Whats in a contract A mere contract for sale of immovable property does not create any interest in the immovable property and therefore the rule of perpetuity cannot be applied. If a contract does not create any interest in favour of an individual or any party, such a contract does not come within the purview of sec.l4. For application of sec.l4, there should be a transfer of interest in the immovable property. Section 20 of the Transfer of Property Act stipulates that where on a transfer of property, an interest is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, although he may not be entitled to the enjoyment thereof immediately on his birth. Indian Succession Act The principle of Section 13 is akin to Section 113 of the Indian Succession Act. Section 113 of the Indian Succession Act deals with transfer in favour of unborn persons which provides that where a bequest is made to a person not in existence at the time of the testator's death, subject to prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed. For example, a property is bequeathed to A for his life and after his death, to his eldest son for life and after the death of the latter, to his eldest son. At the time of the testator's death, A has no son. Here, bequest to A's eldest son is a bequest to a person not in existence at the

testator's death. It is not a bequest of the whole interest that remains to the testator. The bequest to A's eldest son for his life is void. If the beneficiary is not in existence at the time of the testator's death, the bequest is void under sec.113. Similarly, section 113 does not concern itself with any possible diminution of the extent of the property by addition to the class for whose benefit the bequest is made. The vesting of property is not affected by postponement of possession. In the case of a bequest made for the benefit of an unborn person the property is not payable until the birth of the person and the intermediate income would then accumulate for his benefit. Creation of successive life estates in favour of persons not in existence is not permissible in law and the life estate so created in favour of persons in existence and those not in existence would take effect with reference to those in existence at the time of the death of the testator and invalid as to the rest. Mohammedan Law Section 120 of the Shariat Act provides that a bequest to a person not yet in existence at the testators death is void, but a bequest may be made to a child in the womb, provided it is born within six months from the date of the Will.

http://myblog-rajbhu.blogspot.in/2011/03/transfer-of-property-to-unborn-person.html Who is unborn person? An unborn person means a person who is not in existence even in mothers womb. According to section 5 of Transfer of Property Act 1882, transfer of property takes place only between two living persons (see the language of sec 5 of the said Act-transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons, and to transfer of property is to perform such act). This means that transferee i.e. the person to whom it is transferred, must also be in existence at the date of transfer. In the light of the section 5 of the T.P.Act, property cannot be transferred directly to an unborn person. In between the transferor and the unborn there must be an intermediary living person who may hold the property in trust for the benefit of the unborn. The unborn must come into existence before the death of the person holding property for life. If the unborn comes into existence after the death of the last living person, the property shall revert back to the transferor or his heirs. Section 13 of T.P.Act 1882, read as where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.

Illustration: -- A transfer his property to X for life who is unmarried and then to the eldest child of X absolutely. The transfer in favour of eldest child of X is valid. Giving life interest or creating life-estate in favour of a person means giving him only the right of enjoyment and possession. He has to preserve the property like a trustee during his life time on behalf of the unborn. If absolute interest is given to this living person, he may be entitled to dispose it of to anyone. Further in the light of section 16 of the T.P. Act, if prior interest created under section 13 fails, the subsequent interest depending on it also fails. In the case of Girish Dutt V/s Data Din, the gift to unborn daughters with no powers of alienation was held to be invalid.

http://www.lawisgreek.com/tag/partition-joint-family-property Under Indian laws that pertain to the joint family system, when a joint family undergoes partition, each member of the family is entitled to claim his/her share. Under Hindu law, coparacenary share is the term that is used. When partition is being contemplated and any woman of the family is pregnant at the time, Hindu law recommends postponing the partition till the child is born. In Hindu law, a child in the womb also has the right to a share. However, if it is not possible to reschedule the partition, a share must be kept aside and that share must be equal to the coparceners share. If, in case, the partition takes place without keeping a coparcener share for the unborn child, the after born son has the right to get the partition reopened.

UK Legal status of the unborn child

An unborn child has no legal personality Once born alive it can apply retrospective rights for criminal or civil wrong Well established rule of civil law that an unborn child shall be deemed to be born whenever its interests require it.

Paton

v BPAS 1979 In England & Wales the unborn child has no right, no right at all, until birth

Civil Law

gift to a class of children living on a particular date is held to benefit a child in the womb (en ventre sa mere) at that date but later born alive within that class

Yunghanns v Candoora No 19 Pty Ltd (No.1) (1999-2000) 2 I.T.E.L.R. 589

The

primary beneficiaries of a trust were Y's children that were either alive at the date of the trust's creation or born in the future. Y had fallen out with his children had remarried and his second wife was pregnant. The unborn child was a person for the purpose of proceedings where a right that

was for its benefit was in issue and in circumstances where it could institute proceedings regarding that right if it survived birth

Congenital Disability (Civil Liability) Act 1976

Allows

for the child to sue in negligence if harmed in the womb and born handicapped e.g. assisted conception s1(1) excludes the mother on public policy grounds s2 however does allow a woman to be liable if driving when pregnant

due to third party insurance requirement under UK law

Criminal law
Provides

some sanctions against conduct directed at foetus.

Abortion

No

legal definition Douglas G (1993) Reproduction and the Law Any treatment to terminate pregnancy

Offences
Offences Against the Person Act 1861 s.58 - Every woman being with child who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing .or unlawfully use any instrument or other means and whosoever, with intent to procure the miscarriage of any woman whether she be or not be with child shall unlawfully administer to her any poison or other noxious thing .or unlawfully use any instrument or other means shall be guilty of a felony S.59 - Whosoever shall unlawfully supply or procure any poison or other noxious thing or any instrument or thing whatsoever knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman whether she be or be not with child shall be guilty of a misdemeanour

Offences
Infant Life (Preservation) Act 1929 s.1(1)- .any person who with intent to destroy the life of a child capable of being born alive by any wilful act causes a child to die before it has an existence independent of its mother shall be guilty of a felony child destruction. no person shall be found guilty of an offence unless the act which caused the death was not done in good faith for the purpose only of preserving the life of the mother. S1(2)- For the purpose of the Act evidence that a woman had at any material time been pregnant for a period of twenty eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive

R. v McDonald [2002] NI 54

Man

received 22 years imprisonment for attempted murder rape and child destruction after stabbing his ex partner with the intention of killing her and her unborn baby
Rance

v Mid-Downs HA [1991] 1 All E.R. 801

R,

the parents of a child born with spina bifida, claimed damages for negligence in the carrying out of a scan. The scan was carried out when the mother was twenty five and a half weeks pregnant but she was not notified of the suspicion of spina bifida indicated. She claimed she would have asked for the pregnancy to be terminated if she had known. MDHA claimed there was no negligence and in any event an abortion would have been illegal. The issue was whether the child was a child "capable of being born alive" in terms of s.1 of the 1929 Act, had the abortion taken place between the 27th and 28th week of his mother's pregnancy.

Held: The phrase in s.1 of the 1929 Act denoted that the child was capable of existing as a live child after birth with no connection to his mother. On the evidence it was stated that the child would have been able to breathe unaided for two or three hours after birth. Thus, the child was capable of being born alive and the abortion, had it taken place would not have been unlawful in terms of the 1967 Act.

Defences - at common law

R v Bourne [1939]

Mr

Bourne an eminent surgeon performed an abortion on a fourteen year old girl who had been made pregnant as the result of a violent rape. Mr Bourne argued in his defence that he had performed the operation because of the serious risk to the health of the mother if the pregnancy were to continue
In

his summing up the judge focussed on the word unlawful in s.58 of the Offences Against the Person Act 1861 The mischief of the word was to highlight that there were lawful reasons for procuring a miscarriage The jury decided that one of these reasons was to prevent serious injury to the woman and acquitted Mr Bourne

Defences - statutory defence

Abortion Act 1967 (as amended by s37 Human Fertilisation and Embryology Act 1990)

s.1(1)

.. A person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion formed in good faith
that the pregnancy has not exceeded its twenty fourth week and that the continuance of the pregnancy would involve risk greater that if the pregnancy were terminated injury to the physical or mental health of the pregnant woman or any existing children of her family or bthat the termination of the pregnancy is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman (Codification of Bourne) cthat the continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated dthat there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped
a

For a and b account may be taken of the womans actual or

reasonably foreseeable environment s.5(1) Abortion Act 1967 states that

No

offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act Has the effect of removing the twenty eight week limit for paragraphs b,c,d in s.1(1) UK now has one of the most liberal abortion laws in Western Europe

s.4 allows a contentious objection to participating in such treatment other than to save life of the mother Morning after pill not included as it prevents implantation and therefore there is no miscarriage There are mild doubts over the lawfulness of selective reduction Abortion for sex selection and selective reduction need to satisfy s1 of the Act

Rights of the Father

Only the woman has the right to seek abortion She takes the risks No requirement to notify the father Father has no right of veto

Paton

v Trustees of British Pregnancy Advisory Service 1979 C v S 1987

Reform
20 attempts at reform since 1967 Shifted from protection from back street abortions to protection of unborn child Mother takes the risks so her interests should outweigh those of the foetus

Note

R v Collins and Others Exparte S TLR May 8 1998

Interests of the foetus becomes more compelling as it reaches birth Some philosophers argue 3rd trimester should be sacrificial stage

Douglas

suggests only workable way is showing due respect to both the woman and the foetus USA Roe v Wade 1973 allows for minimal regulation until third trimester McLean termination means death should this be? Baroness Cox attempted to amend the Act by forcing doctor to use all reasonable means to secure a child born alive Clear that cutting down of delay is important as the dilemma becomes more acute as the foetus matures Parliament missed the opportunity for improving Sex and Contraceptive Education

Wrongful Life

Does the existence of abortion law place a duty on a doctor to abort a foetus that is likely to be born with a handicap?

Can such a child sue the doctor for damages in wrongful life McKay v Essex HA 1982
LJ

Stephenson

I am ... compelled to hold that neither defendant was under any duty to the child to give the .. mother an opportunity to terminate the childs life. To impose such a duty would make a further inroad on the sanctity of human life which would be contrary to public policy. It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child but so much less valuable that it was not worth preserving These are the consequences of the assumption that a child has the right to be born perfect or not at all

Parents able to recover

For nervous shock and Negligence If child damaged

v City & Hackney HA 1996 v Tayside HB 1999 v Avon HA 2002

Allin

Mother told child was dead

McFarlane Farrell

Father told child was dead

Retrospective Rights

A foetus has no recognisable right at law unless it is born alive Re Attorney Generals Reference (No 3 1994)

Murder

or manslaughter can be committed where unlawful injury is deliberately inflicted either to a child in utero or to a mother carrying a child in utero.
The

requisite intent to be proved in the case of murder is an intention to kill or cause really serious bodily injury to the mother, the foetus before birth being viewed as an integral part of the mother. The fact that the death of the child is caused solely in consequence of injury to the mother rather than as a consequence of injury to the foetus does not negative any liability for murder and manslaughter provided that the jury are satisfied that causation is proved.

v Tait [1990] CA Threat to kill unborn child to pregnant woman not a threat to kill a third person within meaning of s16 OPA 1861 Foetus not a third person distinct from its mother

In utero wardship
Re
I

F In Utero

have considerable sympathy with the local authority in their position on the facts of the instant case, but I am driven to the conclusion that the judge was right and that the court has no jurisdiction to ward an unborn child. If the courts are to have this jurisdiction in a sensitive situation such as the present, I think that this is a matter for Parliament and not for the courts themselves. For these reasons, I think that the judge below was wholly correct in the decision refusing jurisdiction to which he came, and it was for these reasons that I agreed that the appeal should be dismissed.