Legal personality is a prerequisite to legal capacity, the ability of any legal person to amend (enter into, transfer, etc.) rights and obligations. 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.

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. This is per general common understanding; though there is a strong difference of opinion here too which may be taken as exceptions. Understanding absence of personality in the pre-birth stage poses problems as the unborn being understood as incapable of exercising any legal rights and not being duty bound towards anybody.

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! As a general rule of law they are not legal persons though there are exceptions, where the unborn is indeed given some modicum of legal personality.

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 Code or a specific criminal law 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 foetus,

3.         it is not necessarily an offence to kill a foetus. This is subject to the qualification of legal abortions.

4.         it remains arguable whether it is a criminal offence to cause the foetus injuries from which it dies after being born alive.

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.