Introduction
Questions about a man’s legal rights over an unborn child often arise in situations involving abortion, marital disputes, or separation. In Indian law, pregnancy is primarily treated as a matter concerning the woman’s body, health, and autonomy. While men may have emotional, moral, or social interests in an unborn child, Indian law places strict limits on any legal control or decision-making power exercised by men during pregnancy. The legal framework prioritises the rights, dignity, and bodily autonomy of the pregnant woman.
Legal Status of an Unborn Child Under Indian Law
Under Indian law, an unborn child does not have an independent legal personality equal to a living person. Certain laws, such as succession and property laws, recognise a foetus as a legal fiction for limited purposes, provided the child is later born alive. However, this recognition does not grant enforceable rights to the father over the foetus during pregnancy. The unborn child’s conditional legal recognition cannot be used to restrict the woman’s reproductive choices.
Rights of Men Under the Medical Termination of Pregnancy Act
The Medical Termination of Pregnancy Act, 1971, as amended in 2021, governs abortion in India. The Act vests decision-making authority solely in the pregnant woman. For an adult woman, only her consent is required for termination of pregnancy. The consent of the husband, male partner, or biological father has no legal relevance.
Indian law does not recognise any paternal veto or approval right over abortion decisions. A man cannot legally prevent a woman from terminating a pregnancy, even if the pregnancy occurred within marriage or the man wishes to continue the pregnancy.
Judicial Position on Men’s Claims Over the Foetus
Indian courts have consistently rejected attempts by men to assert control over an unborn child during pregnancy. In Anil Kumar Malhotra v. Ajay Pasricha (2017), the Supreme Court held that a husband has no right to claim damages or interfere with his wife’s abortion decision, affirming that the MTP Act requires only the woman’s consent.
Courts have repeatedly held that forcing a woman to carry a pregnancy against her will would violate her fundamental rights under Article 21 of the Constitution, which guarantees personal liberty, bodily autonomy, dignity, and privacy. Judicial reasoning makes it clear that recognising paternal rights over the foetus would undermine women’s constitutional freedoms.
Constitutional Perspective on Bodily Autonomy
The right to bodily autonomy is central to India’s constitutional jurisprudence. The Supreme Court in Suchita Srivastava v. Chandigarh Administration (2009) held that reproductive choice forms part of personal liberty under Article 21. Later, in Justice K.S. Puttaswamy v. Union of India (2017), the Court recognised decisional privacy as a fundamental right.
These judgments collectively establish that decisions regarding pregnancy lie within the exclusive domain of the woman. Men do not possess constitutional rights that override a woman’s autonomy during pregnancy.
Limited Recognition of Men’s Interests After Birth
While men have no legal rights over an unborn child during pregnancy, legal rights and responsibilities may arise after the child is born alive. These include rights related to guardianship, custody, maintenance, and inheritance, governed by personal laws and statutes such as the Guardians and Wards Act, 1890. However, these post-birth rights do not retroactively create control over pregnancy or abortion decisions.
Emotional and Moral Interests Versus Legal Rights
Indian law draws a clear distinction between emotional or moral interests and enforceable legal rights. A man may feel emotionally invested in the unborn child, but such interests do not translate into legal authority over the woman’s reproductive choices. The legal system prioritises health, consent, and autonomy over emotional claims during pregnancy.
Conclusion
Indian law does not recognise any legal rights of men over an unborn child in the mother’s womb that can override the woman’s reproductive autonomy. The Medical Termination of Pregnancy Act, constitutional protections under Article 21, and consistent judicial interpretation make it clear that pregnancy-related decisions belong exclusively to the woman. While men may acquire legal rights and responsibilities after the child is born alive, they have no legal control over pregnancy or abortion decisions during gestation.
