Court in India Rules Unborn Child Is “Living Person”

An Indian state consumer court has delivered an unprecedented ruling in favor of a woman seeking an insurance claim on the death of an unborn child — the court determined that the unborn baby was a living human being entitled to personhood and required the insurance company to pay the claim.

Kanta Kotecha filed the claim on the deaths of her husband, her son and daughter-in-law, and her unborn grandchild of seven months gestation, who were all killed in a tragic automobile accident, The Times of India reported March 6.

The United India Insurance Company rejected her claim for her son Atul, saying he was not covered since he wasn't a paid driver, and also rejected the claim for the unborn child. The insurance firm said the child could not be considered a passenger in the vehicle since it was not yet born.

Kotecha complained before the Yavatmal District Forum, which said the insurance company must pay the claim for Atul but not the unborn child. Kotecha then appealed to the Maharashtra State Commission.

The Commission drew on United States law under the Unborn Victims of Violence Act from 2004, which made it a crime to injure or cause the death of an unborn child against the will of the mother. Justice B.B. Vagyani issued a ruling for the three-judge panel in November 2006, stating that the term "human fetus" implies a living, growing organism. Since the unborn baby is living, the commission reasoned, it is entitled to personhood.

The court's decision went a step further than the US law, which makes it a separate criminal offence to injure or kill an unborn child while carrying out a federal offence (excluding abortion or any action taken by the mother against the child in the womb).

In permitting a separate insurance claim for the unborn child, the India court ruling gave the unborn child rights commensurate with personhood, as a separate identity from the mother under law.

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