ABSTRACT
This research is a view of the author (i) and the society. It’s basically on children from the very base of their emergence in their mother’s womb and their survival in this world. Not every child survives with their biological parents and before that survival they have to face various problems from the time of their conception.
At the time of their conception their very emergence matters that how they came to this stage. Are they outcome of love or they outcome of some kind of external force, this matters in their further survival. This world is new to them and they become innocent victim who are not supposed to suffer because of others act.
After their birth their very base decides their future life . If they are outcome of love then they live with their parents but if they are not outcome of love then they are given to adoption or taken care with force. That force is not because there is some emotional fault in their mother’s but that is because of the social thinking. They refer the child as evil blood or an omen which is far more worst than the memory of the evil happened with their mothers. Children are innocent souls and they will not continue as their biological fathers , they will live with hole dignity with their mother’s.
If the child is out of love but still it has to leave its parents because there goes nothing good in their family between their mother and father so they finally decide to separate. The innocent mind of their child gets effected because of their act which devastate their present state of mind and the world seems pathetic to live for them.
If the child is conceived successfully after love then also discrimination happens because of their greed for parental setup in the society. They wish for a son as they refer a girl child as paraya dhan and because of that an ACT was passed on 1994 which came into force from 1996 and was known as pre natal test. This was done to equate the ratio of girls and boys which differ a lot.
After all that their is an important person without whom this discussion would be empty and that is a mother who gives birth to a child and cares for it. Without her a child cannot come into this world and can’t survive. Her plight. Her miseries, and her efforts cannot be ignored .
INTRODUCTION
Legitimacy : related to all the queries of law, legal rights related to unborn.
Unborn : not yet born, or a developing human being roughly after eight weeks of conception.
Fetus is a living being or not? This is still in dilemma. Fetus is not the part of human body , it is a different organism. An organism which is an individual living thing but every living thing is not human and only humans have fundamental rights which includes right to live.[1]
ETHICAL ISSUES AND CHALLENGES
Ethical is related to moral principals. Giving legal rights to an unborn is legally right or not. Whether its standards match with the common behavior or it’s just a topic of writing and talking in wasteful manner.
In law nothing can be said right or wrong, perception of people matters who make law implement it and punish those who encroach it.
The convention on the right of the child ( here in after referred to as the CRC ) , which has been signed and ratified by the Republic of India leaves room open for interpretation of when the childhood may commence : at fertilization , at conception , or at birth , or at somewhere in between.
Morally the question arises about the life of fetus . But fetus is totally depended on their mother’s. There is a contradictory situation of thought and morality about the new life for physically presence in future and the already existing life to survive in future.
LEGAL ISSUES AND CHALLENGES
According to Hindu Law rights come to a child or it becomes legal as soon as it is conceived. Legal aspects are not that much contradictory as some borders have been put forth by the court of law.
A child in the mother’s womb is considered to be in existence and section 99(1) of the Indian succession act 1925 clearly provides that “ all words expressive of relationship apply to a child in the womb who is afterwards born alive.”
SOCIAL ISSUES AND CHALLENGES
Identity of a person exist in social ambient. A person is independently responsible for their social and individual presence and importance . Issues arise whether its subjective or objective. Two living beings are in effect and their still exist a contradiction whether the fetus is living or not.
FETUS has life or not?
First of all the characteristics of living:
Growth which is the most important factor . But again plants also grow, they have a life scientifically but they don’t have the rights of an individual who is there in a society
UNMARRIED JUVENILE MOTHER
Juvenile or the period of teenage where everyone thought of their coming future, courier and college life. But situation of a female is not taken socially if she gets pregnant with a child as the outcome of rape or will full sexual activity without protection.
Abortion can be done at some selective period which is safe for the mother carrying fetus but rape is already a situation to be handled carefully afterwards both physically and mentally where a room to understand the pregnancy becomes vacant of concerns.
Rape in itself is a feeling of acrimony to a person who is legally known as victim. A victim who becomes mother of an unexpected child faces certain traumas. She also fights for abortion because of bitter social reasons, her age and economic situations . Many cases arise for this situation and the main point of concern is that the child is due to rape and is unexpected. The victims are not mentally prepared for the child and the situation before them becomes devastating and pathetic to live with un-settled economic and social life. So, the question arises that how can someone raise a child who is unexpected and unwanted. Above all that the present economic and social situation fall like a broken cloud and blast like a grenade on them.
Certain cases come up in supreme court which deals with juvenile cases where a juvenile has to give birth to a baby because of her delay from the border line time . Twelve years fourteen years or lesser than that are the ages of victims whose life faces traumas at a very young age.
Time comes up with saddened, angered and frustration with in the victim who conceives a child . The child who is some times referred to as spawn and evil seeds. Society demonstrate the plight of a victim and generate empathic thought. People never think from the side of a mother carrying a child out of rape instead they only think of victim and pass various comments which definitely hurts her and make her situation even more miserable. The individual about whom every one talks about with pathetic and devastating comments is her child who may be about as far from her biological father in nature as two people can be. Gene pool is not effected by that child its only parents love and good upbringing which effects their pool.
If a women is ready to accept the child then how can people pass on various comments on her child. Beyond a certain point though, the sepulchral tones about reminders begin to flick on the raw. All rape survivors have to bear reminders, and for some of them a child me be far from the worst. Seeing their own child vilified as a monster or as dirtying up the gene pool of humanity, is far more hurtful to them than any reminder of rape could ever be. Their child is not less than a human. If a mother had a painful past then because of that there should be no room for another pain to that child in future who don’t deserve to hurt because of somebody else’s actions.[2]
RIGHTS OF A CHILD OUT OF RAPE
Rape which is now a day’s very common word or we can say that it’s a very common terminology of news channels showing the face of actual world where two people are involved one is a victim and the other is a criminal or criminals. Here we are talking about the child rights who are out of rape where the first victim is the mother who has to give birth to a child after fighting for his/her termination in the court of law. The loosing results a child who is also an innocent living body with a following future. That child or we can say is the second victim of rape. The first victim (mother) don’t want to be shameful in the society carrying the baby without his/her father’s name and hence she choose the way of abortion but the child whose initial stage was expected to be life less by his/her mother later becomes an individual with all the fundamental rights..
The question arises about the child’s survival, child’s right and where does a child will live and with whom the child will live.
The child out of rape is entitled to hold his/her biological father’s paternal property or will have a share in it. The father who neglected the child to give his name and misbehaved with his/her mother and showed no respect will surely fight to secure the whole coin without losing any penny. The outcome of the fight for a coin is ambiguous . The second option is adoption or we commonly know it as foster parents . Those parents will take care of the child who is neglected by his/her biological parents for various reasons.
Child conceived out of rape can be seen from two phases, one from the mother’s side and the other from the side of the child. Child also faces many traumas that they are unbearable reminder of a violent attack which destroys their confidence and they also feel about the deviant behavior which was genetic and their biological’s father’s evil was embedded in their genes and they are created from violence.
CHILDREN OF DIVORCED PARENTS
Nature made it mandatory for a child to be born with both the parents , a mother can’t give birth to a child solely and a father too cannot give birth to a child solely. It’s not possible in the nature to give birth solely to a child then how can a child be raised solely.
If both the parents can’t cooperate with each other then they separate and live on their own. On the above given cases child is the second victim but here child becomes the first victim and the only major victim. His/her base accumulates all the negativity and hatred which will ultimately result into various issues in his/her personal life.
This situation not emerges suddenly. There are various domains and the material is collected step by step for the fire to begin. Those steps involve adult fights, sarcastic behavior, comments and a house becomes a building without any homely feelings. The place where every one rest and survie like a personal comfort is our home which contains all our feelings of comfort but due to sarcastic comments and unhappy conditions that place becomes a graveyard, homely feelings which we expect from our home destroys .
Children in this situation try to compare between their in group and out group. In group is the group which contains their family and out group is the group consisting of their neighborers and everyone effecting their survival and interrupting their thoughts . They try to compare between their in group and out group . That comparison between their in group and out group leads them to a road of confusion where they are unable to think of their present situation and keeps on thinking about their blank future . A philosophical thought comes in mind that life is too long and how we will be able to survive without our loved ones and those loved conditions in this situation is the love of a family here co operation , management and love exist.
Issues are not less and by discussing about it people cannot reduce its influence on those young , immature minds. The hatred, ignorance, bad upbringing and non cooperation within the family makes them small challengers for only their day to day survival of their one relaxed breath. This situation is as similar as a person is closed inside a box and receives the glimpse of outer world from inside . Here in this situation a person knows how to live a happy life by seeing the glimpse of happy neighbors but cannot live like that and a person mentioned here is not an adult but a child who’s life is shattered due to many reasons.
ADOPTION vs MODERN REPRODUCTIVE TECHNIQUES
Adoption and modern reproductive techniques or we can say it as surrogacy involves an individual to performs the activity of giving birth to a child or handing over that child to someone else is a mother. In both the cases a mother is involved . A mother who bears her child for about nine months and in those months she can feel all those ups and downs of her life with her child. Even if the world is not with her she has one life inside her with whom she can find this harsh world as a beautiful one. Later conditions everyone knows that the child goes away from her and there must be some expectations in her heart that child will survive in future with whole love and affection as she gave him/her in her womb for nine months.
Adoption and modern techniques of reproduction are available to both couple and single parent. The extended difference in both the situation is of population but here we are not discussing about the population but is a discussion about a child obtained by either of the two methods. A child who is brought in this world by someone (mother) which is common in both the cases and situations but here the difference arises is of the will of a mother . In adoption the will of a mother changes after the birth of a child or the child legally de attach itself after the birth when someone adopts the child and becomes foster parents but in surrogacy a child legally de attach itself from its mother soon after conception in her womb or before birth . In both the cases the economic condition of a mother matters but this mainly matters in surrogacy . In adoption various other reasons are also present where there is no availability of biological parents of the child, if a child is out of rape and mother is unable to handle or take care of the child. In MRT mother is pre bound to give her child after birth to the actual legal or contractual parents.
Surrogacy and adoption have many similarities but there’s a major difference and that difference is of genes. In surrogacy a contract is made for the genetical bases of a child and that is obtained by the actual parents. Here, a contract is made for every thing and a surrogate mother can live with the actual parents while it’s totally different in adoption case. Where genetic bases are not pre designed by any one. A mother can do anything at the time of pregnancy. A lady could rent her womb either for monetary compensation or compassion or for any other better reason. Surrogacy carries various restrictions for a surrogate mother which are made for the betterment of a child and free from its adulteration.
PRE-NATAL DIAGNOSTIC TECHNIQUES ACT, 1994
Litmus test where an opinion is made to reach out a judgement whether an area is accepted or not.
Gender equality are an integral part of constitution. Equal rights and opportunities are bestowed upon by the constitution. But still discrimination against women occurs and is almost universal. The issue is big because the ratio is getting imbalanced and girl child is seen as a burden in society. Forced abortions of female fetuses and prenatal sex determination results in millions of girls not being allowed to be born just because they are girls a burden on their parents.
Taking cognizance of this issue the Government of India has put in place a law, the PCPNDT ACT that prohibits the use of pre conception and prenatal diagnostic techniques to determine the sex of an unborn child. It’s also imposes a fine and imprisonment on doctors indulging in this practice.
This practice has led to the decline in the girl sex ratio. Son preference against the girl child is universal only some people wish for girls and in every family people wish to have a son and they welcome him with full love and care. The consequence of declining sex ratio are serious . Sex selection is a reflection of the low status of women in society. Sex selection reflects the mindset of people towards patriarchal family which becomes a step to them. The decline in sex ratio can severely impact the delicate equilibrium of nature and destroy our moral and social fabric. Sex selection also occurs because of the perceived financial cost of having a girl child, which includes paying for her education, community customs that put burden on the family, increasing commercialization of the institution of marriage because of which large sums have to be spent on the marriage ceremony and given away as dowry . People think that girls are paraya dhan and they will not become the support system of their family instead the will go and serve some other family.
Maharashtra was the first state in the country to enact the Maharashtra regulation of use of Pre Natal Diagnostic Technique Act in 1988, prohibiting the use of new scientific techniques for sex determination and sex selection treating it is totally insulting to the dignity of womanhood and against the spirit of Constitution in which the right to equality is embedded.
The burden of the legal community including the bench and the bar in such situation becomes onerous if the mindset of society is not changed.
By: Amrita Verma
REFERENCES
[1] Article 21 of the Constitution
[2] Jonathan Torgovnik, Can you love a child of rape (2009)
