Tracing the Juridical Recognition of Unborn and Minor Persons in India

The word “person” is derived from the Latin word persona. Originally a term used in theatre, it referred to a mask worn by performers. Through the influence of Roman and English law, the meaning of the term evolved to denote a human being.

Generally, legal personality has been divided into natural persons and artificial or legal persons. Natural persons are living human beings recognised as persons by the State.¹ A legal person, on the other hand, has a real existence but its personality is fictitious — that is, it does not exist in fact but is deemed to exist in the eyes of the law.

When we say that an object is being personified, it means that we deem it to be endowed with attributes and qualities that belong particularly to humankind, such as the power of thought, speech, and choice. Conversely, when people are deprived of the power of reason and choice, they are often described as less than persons.²

Historical Evolution

History is the best witness to the fact that the concept of “person” in law has never been strictly coextensive with biological humanity. Instead, it has been a gradual evolution shaped by societal structures and technological advancements of each era.

The earliest recorded protection of the unborn is traced to the city of Thebes in ancient Greece, where penalties were imposed upon those practising abortion. Socrates supported facilitating abortion upon a woman’s request; Plato suggested abortion for women above forty while preferring contraceptive alternatives; and Aristotle recommended abortion prior to foetal animation, believed to occur after sixty days of conception.³

Roman law represents a decisive stage in this evolution, as juridical recognition was not strictly dependent upon biological humanity. The treatment of slaves provides a clear illustration: although slaves were undeniably human beings, they were legally classified as objects or things.⁴

During the medieval period, the doctrine of legal personality expanded further through its application to religious and collective entities. Juridical systems increasingly recognised God, saints, and ecclesiastical institutions as legal units capable of holding property and rights.⁵

In the modern period, Pound notes that certain classes — such as free Black individuals — existed as human beings without corresponding legal rights.⁶ This uncertain position within legal personality ultimately contributed to the Civil Rights Movement in the United States. The doctrine of civil death further illustrates that a person could be legally treated as having lost personality despite being naturally alive, in cases of serious criminal conviction or comparable legal disability.⁷

Legal Status of Unborn Persons in India

The legal status of the unborn in India remains a subject of nuanced doctrinal inquiry. Indian law does not accord full legal personhood to a foetus merely by virtue of its existence in the womb, yet it recognises contingent rights and protections in specific legal contexts — especially where justice, inheritance, and welfare interests are implicated.

The Nasciturus Principle

The most significant jurisprudential device governing the rights of unborn persons in India is the nasciturus principle. Under Roman law, this principle is expressed through the Latin maxim: Nasciturus pro iam nato habetur, quotiens de commodis eius agitur — “the unborn is deemed to have been born to the extent that his own benefits are concerned.”⁸

The nasciturus principle operates as a legal fiction in Indian jurisprudence to protect the prospective interests of a conceived but not yet born child. It does not confer full juridical status on the unborn. This right is contingent upon two conditions: the live birth of the child, and its operation solely for the benefit of the unborn.

Constitutional Perspective

The constitutional position of the unborn in India is principally examined through Article 21⁹ of the Constitution, which guarantees the right to life and personal liberty. The Supreme Court has expansively interpreted Article 21 to include dignity, bodily autonomy, and reproductive choice. However, it has not explicitly extended independent fundamental rights to the unborn. In Suchita Srivastava v. Chandigarh Administration,¹⁰ the Supreme Court held that reproductive choice forms part of personal liberty and that the State has a duty to protect the life and health of a pregnant woman and her unborn child. The right of an unborn child is not absolute, however, and must be balanced against the rights of the mother.

Statutory Provisions

Indian law does not confer full juristic personality upon the unborn, but several statutory enactments explicitly or implicitly recognise prenatal interests.

• Under the Indian Succession Act, 1925, Section 113¹¹ ensures that property cannot be tied up indefinitely and prevents creation of successive life interests in favour of unborn persons beyond permitted limits.
• Section 13¹² of the Transfer of Property Act, 1882 allows transferring property for the benefit of an unborn person, provided a prior life interest is first created for a living person.
• Section 20¹³ of the Hindu Succession Act, 1956 provides that a child who was in the womb at the time of the death of the intestate and who is subsequently born alive shall have the same right to inherit as if he or she had been born before the death of the intestate.
• Section 456¹⁴ of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides for commutation of the death sentence of a woman found to be pregnant.
• The law also criminalises causing miscarriage under Section 88¹⁵ of the Bharatiya Nyaya Sanhita (BNS), 2023.
• Notwithstanding these protections, the Medical Termination of Pregnancy (MTP) Act, 1971¹⁶ prescribes gestational limits and medical grounds for termination of pregnancy, confirming that the statute does not treat the unborn as a constitutional rights-holder.

Judicial Interpretation

Judicial interpretation in India has consistently adopted a restrained and structured approach toward the legal status of unborn persons. Courts have neither treated the unborn as a complete legal non-entity nor elevated it to the status of a fully independent juristic person.

In Tagore v. Tagore,¹⁷ the Privy Council laid the foundational principles governing transfers and estates involving unborn beneficiaries. The Court held that property cannot be transferred inconsistently with established legal rules, and that interests in favour of unborn persons must comply strictly with legal limitations.

The constitutional dimension was significantly addressed in Suchita Srivastava v. Chandigarh Administration,¹⁸ where the Supreme Court held that a woman’s right to make reproductive choices is a dimension of personal liberty under Article 21. The Court emphasised bodily autonomy and dignity, without recognising the unborn as an independent constitutional rights-holder.

This position was reaffirmed in X v. Principal Secretary, Health and Family Welfare Department, Government of NCT of Delhi,¹⁹ where the Supreme Court expanded access to abortion under the Medical Termination of Pregnancy Act to unmarried women. The Court acknowledged the State’s interest in potential life but prioritised reproductive autonomy and equality, again refraining from attributing fundamental rights to the unborn.

Legal Status of Minors in India

A minor is not regarded as fully incompetent in law, but as a person whose legal capacity is restricted to safeguard their interests. Doli incapax is a Latin legal doctrine meaning “incapable of doing harm,” which presumes that children below a certain age cannot form the necessary criminal intent or mens rea to be held criminally liable. The State also acts as parens patriae — parent of the nation — in safeguarding the interests of minors.

Statutory Provisions

• Section 3²⁰ of the Indian Majority Act, 1875 fixes the age of majority at eighteen years, or twenty-one years in cases involving court-appointed guardians.
• Section 11²¹ of the Indian Contract Act, 1872 provides that only a person who has reached the age of majority is competent to enter into a contract. The implication is that agreements with minors are void, meaning they create no enforceable obligations against the minor. This ensures commercial protection for children.
• Section 8²² of the Hindu Minority and Guardianship Act, 1956 restricts a guardian’s power to transfer a minor’s immovable property without court permission, preventing misuse of the minor’s assets.
• Sections 20²³ and 21²⁴ of the Bharatiya Nyaya Sanhita, 2023 provide absolute and qualified immunity to minors depending on their age, grounded in the principle of doli incapax.

Judicial Interpretation

In Mohori Bibee v. Dharmodas Ghose,²⁵ it was held that a minor’s agreement is void ab initio, establishing contractual incapacity grounded in protective theory rather than consent.

In Khan Gul v. Lakha Singh,²⁶ the Court clarified that although a minor’s contract is void, restitution may be granted where specific property remains traceable in the minor’s possession — ensuring fairness and preventing misuse of the law by minors.

In Rosy Jacob v. Jacob A. Chakramakkal,²⁷ it was emphasised that the child’s welfare is paramount in custody disputes, overriding the father’s absolute right to guardianship. The Court held that child custody orders are temporary and can be modified based on the child’s best interests.

In the sphere of criminal jurisprudence, Pratap Singh v. State of Jharkhand²⁸ clarified that juvenility must be determined with reference to the date of commission of the offence.

A Cross-Country Perspective

Across jurisdictions, the legal treatment of unborn and minor persons reflects a shared human concern: how should the law protect life and vulnerability without suppressing autonomy and dignity?

In relation to unborn persons, most constitutional democracies stop short of recognising the foetus as a full legal person, but they do acknowledge a legitimate state interest in protecting potential life. In the United States, the long-standing constitutional framework established by Roe v. Wade²⁹ treated viability as a constitutional threshold, balancing foetal interests with a woman’s right to privacy. That position changed dramatically in Dobbs v. Jackson Women’s Health Organization,³⁰ where the Supreme Court shifted authority back to individual states. The United Kingdom adopts a statutory, health-based model under the Abortion Act 1967,³¹ focusing primarily on medical and social considerations rather than attributing legal personhood to the foetus.

In this comparative light, India’s approach appears carefully balanced: it does not confer independent legal personality on the unborn, yet it protects foetal interests in areas such as succession and criminal law while prioritising maternal autonomy under statutory regulation.

When it comes to minors, global trends increasingly recognise that childhood is not a fixed legal incapacity but a stage of evolving maturity. In the United Kingdom, Gillick v. West Norfolk and Wisbech Area Health Authority³² introduced the idea that a sufficiently mature minor can make certain medical decisions independently. In the United States, In re Gault³³ affirmed that juveniles are entitled to procedural fairness, while Roper v. Simmons³⁴ recognised developmental immaturity as constitutionally relevant in sentencing. Many European civil law systems similarly adopt graded responsibility, allowing limited contractual or criminal accountability based on age and maturity rather than rigid incapacity.

Seen together, these approaches reveal a common trajectory: legal systems are moving away from viewing unborn and minor persons merely as objects of protection, and toward recognising them within a more nuanced framework. While methods differ, the underlying concern remains profoundly human, and India’s jurisprudence — situated within this broader global dialogue — reflects the same balancing impulse.

Critical Analysis and Emerging Challenges

Indian law adopts a practical approach to unborn persons and minors, yet the framework lacks a clear theoretical foundation. Protections exist across different areas of law, but they operate in isolation, creating doctrinal gaps that may lead to inconsistency when new legal questions arise.

Technological change significantly intensifies these concerns. Assisted reproductive technologies such as IVF, surrogacy, embryo freezing, and genetic screening have transformed the very idea of when life begins and how parenthood is defined. Legal doctrines built around natural conception now struggle to address questions involving stored embryos, donor gametes, and cross-border surrogacy arrangements.

Parallel to this, the digital environment has created new legal spaces where minors routinely engage in contractual, financial, and creative activities. These developments blur traditional assumptions about capacity, consent, guardianship, and liability — placing growing pressure on laws that were designed for a far simpler social and technological landscape.

Conclusion

The discussion above shows that Indian law adopts a careful and measured approach toward both unborn and minor persons. At the constitutional level, courts have consistently prioritised the autonomy and dignity of the pregnant woman, creating a delicate balance: the unborn is protected where necessary to secure future interests, yet it is not treated as an independent constitutional rights-holder. The approach is practical and avoids extreme positions, but it also leaves unanswered questions about the theoretical basis of such selective recognition. The most pressing challenge, therefore, is the need for a coherent framework that recognises legal personality as a gradual and evolving concept. Clarifying the principles behind legal recognition will help ensure consistency and prepare the law for future social and technological developments.

Bibliography

1. Abortion Act 1967 (UK).
2. Bharatiya Nagarik Suraksha Sanhita, 2023, § 456 (India).
3. Bharatiya Nyaya Sanhita, 2023, § 88 (India).
4. Bharatiya Nyaya Sanhita, 2023, § 20 (India).
5. Bharatiya Nyaya Sanhita, 2023, § 21 (India).
6. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
7. Gillick v. West Norfolk & Wisbech Area Health Auth., [1986] AC 112 (HL).
8. Hindu Minority and Guardianship Act, 1956, § 8 (India).
9. Hindu Succession Act, 1956, § 20 (India).
10. In re Gault, 387 U.S. 1 (1967).
11. INDIA CONST. art. 21.
12. Indian Contract Act, 1872, § 11 (India).
13. Indian Majority Act, 1875, § 3 (India).
14. Indian Succession Act, 1925, § 113 (India).
15. Juliana Peixoto Bezerra de Melo, Moral Damages to the Unborn: Analysis of the Legal Aspects of Their Protection, 11 Revista Ibero-Americana de Humanidades, Ciências e Educação 1910 (Nov. 2025).
16. Khan Gul v. Lakha Singh, AIR 1964 P&H 399 (India).
17. Medical Termination of Pregnancy Act, 1971 (India).
18. Mohori Bibee v. Dharmodas Ghose, ILR (1903) 30 Cal 539 (India).
19. P.J. FITZGERALD, SALMOND ON JURISPRUDENCE 298 (12th ed. 2020).
20. Pratap Singh v. State of Jharkhand, (2015) 12 SCC 201 (India).
21. Property Law and Unborn: The Legal Fiction and the Property Rights, 2 Int’l J. Legal Sci. & Innovation 367, 373 (2020).
22. Roe v. Wade, 410 U.S. 113 (1973).
23. Roper v. Simmons, 543 U.S. 551 (2005).
24. ROSCOE POUND, JURISPRUDENCE vol. IV, 193 (1959).
25. Rosy Jacob v. Jacob A. Chakramakkal, (2003) 1 SCC 49 (India).
26. SIR FREDERICK POLLOCK, JURISPRUDENCE AND LEGAL ESSAYS 61 (A.L. Goodhart ed., 1963).
27. Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India).
28. Tagore v. Tagore, 9 BLR 399; 18 WR 359 (India).
29. Transfer of Property Act, 1882, § 13 (India).
30. V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY 337 (5th ed. 2012).
31. X v. Principal Sec’y, Health & Family Welfare Dep’t, Govt. of NCT of Delhi, Civil Appeal No. 5802/2022, 2022 SCC OnLine SC 1321 (India).

Footnote(S):

¹ V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY 337 (5th ed. 2012).

² P.J. FITZGERALD, SALMOND ON JURISPRUDENCE 298 (12th ed. 2020).

³ Juliana Peixoto Bezerra de Melo, Moral Damages to the Unborn: Analysis of the Legal Aspects of Their Protection, 11 Revista Ibero-Americana de Humanidades, Ciências e Educação 1910 (Nov. 2025).

⁴ SIR FREDERICK POLLOCK, JURISPRUDENCE AND LEGAL ESSAYS 61 (A.L. Goodhart ed., 1963).

⁵ Id.

⁶ ROSCOE POUND, JURISPRUDENCE vol. IV, 193 (1959).

⁷ Id.

⁸ Property Law and Unborn: The Legal Fiction and the Property Rights, 2 Int’l J. Legal Sci. & Innovation 367, 373 (2020).

⁹ INDIA CONST. art. 21.

¹⁰ Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India).

¹¹ Indian Succession Act, 1925, § 113 (India).

¹² Transfer of Property Act, 1882, § 13 (India).

¹³ Hindu Succession Act, 1956, § 20 (India).

¹⁴ Bharatiya Nagarik Suraksha Sanhita, 2023, § 456 (India).

¹⁵ Bharatiya Nyaya Sanhita, 2023, § 88 (India).

¹⁶ Medical Termination of Pregnancy Act, 1971 (India).

¹⁷ Tagore v. Tagore, 9 BLR 399; 18 WR 359 (India).

¹⁸ Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1 (India).

¹⁹ X v. Principal Sec’y, Health & Family Welfare Dep’t, Govt. of NCT of Delhi, Civil Appeal No. 5802/2022, 2022 SCC OnLine SC 1321 (India).

²⁰ Indian Majority Act, 1875, § 3 (India).

²¹ Indian Contract Act, 1872, § 11 (India).

²² Hindu Minority and Guardianship Act, 1956, § 8 (India).

²³ Bharatiya Nyaya Sanhita, 2023, § 20 (India).

²⁴ Bharatiya Nyaya Sanhita, 2023, § 21 (India).

²⁵ Mohori Bibee v. Dharmodas Ghose, ILR (1903) 30 Cal 539 (India).

²⁶ Khan Gul v. Lakha Singh, AIR 1964 P&H 399 (India).

²⁷ Rosy Jacob v. Jacob A. Chakramakkal, (2003) 1 SCC 49 (India).

²⁸ Pratap Singh v. State of Jharkhand, (2015) 12 SCC 201 (India).

²⁹ Roe v. Wade, 410 U.S. 113 (1973).

³⁰ Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

³¹ Abortion Act 1967 (UK).

³² Gillick v. West Norfolk & Wisbech Area Health Auth., [1986] AC 112 (HL).

³³ In re Gault, 387 U.S. 1 (1967).

³⁴ Roper v. Simmons, 543 U.S. 551 (2005).