Although the foetus has life, it is not treated as a separate living being as far provisions of the law are concerned. Under the Indian Penal Code (IPC), killing a person (section 302) invites a maximum punishment of life imprisonment. The IPC has a separate provision for causing miscarriage (section 312), the maximum punishment for which is seven years.
"The law is confused as to when life begins. The foetus has life and is treated as being alive but is not considered as a separate living being. It is a complex issue," said advocate Mihir Desai.
However, once the foetus is more than 20 weeks old, it has constitutional rights, according to which it has the right to life. "It is because of this that the Medical Termination of Pregnancy (MTP) Act does not allow abortion after that (period) except in exceptional cases where it could endanger the mother's life," said a senior advocate. After 20 weeks no doctor can help a woman terminate her pregnancy.
Besides, the Hindu law treats the foetus as a living being once it is 12 weeks old. After 12 weeks it has all the rights of a human being since it's only after three months that the child reacts inside the womb, said advocate Uday Warunjikar.
The IPC, which defines man and woman, does not include the unborn child. According to the IPC, a 'person' includes any Company or Association or body of persons. The penal code gives valid existence to a non-living entity.
Rejecting the Mehtas' petition seeking to abort their 24-week (now 26-week) foetus, the Bombay High Court said it could not pass an order to kill an innocent life.