Property Law and Unborn: The Legal Fiction and The Property Rights

Gowri Dev
Cochin University of Science and Technology, Kochi, Kerala, India.

Volume III – Issue I, 2021

Unborn, in the simplest terms, means who is not yet born. Many variations, yet some similar definitions for the same are present in some form or other all around. The controversy surrounding rights of an unborn might be a result of the fact that an unborn is protected by the law. The rights of an unborn child are one of the most intriguing interfaces between science, morality and law. An unborn child, for many purposes under the legal system, is regarded as already born, according to the maxim nasciturus pro jam nato habetur. A child in the mother’s womb is considered a person or as already born, under the property law to the extent that such a child is born alive subsequently. An emphatic determination of the same hasn’t been done. The rights or status of a yet-to-existent person should be decided irrefutably as it influences or have a direct implication over the rights of other existing individuals, especially the proprietary rights. This legal fiction finds its presence in the Indian jurisprudence with the incorporation of certain provisions which guarantees property rights to the unborn in the legal enactments.


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