Fetus, a living being, rules top Mumbai court

In a landmark judgment, a top consumer court in Mumbai, Maharashtra, has ruled that an unborn child is also a human being and is, therefore, entitled to the same insurance coverage that is provided to any normal consumer.

The judges of the Maharashtra State Commission made the decision in favor of the plaintiff in the case of Kanta Mohanlal Kotecha v/s Branch Manager, United India Insurance. The former is widow of Mohanlal, who had taken a comprehensive insurance policy with the multinational insurance company prior to his death in an automobile accident.

Mohanlal Kotecha had taken a comprehensive insurance policy for his Maruti car and it included a coverage of Rs. 1 lakh each to three unnamed passengers and Rs. 2 lakh for the owner–driver. Both Mohanlal and his son Atul held valid driving licences.

On the fateful night, Mohanlal, Atul (who was driving) and Atul's wife Switi (who was seven–month pregnant) were traveling in the car when it crashed on the Yavatmal–Nagpur road. All of them died on the spot.

Kanta, the policy beneficiary, brought the case against the insurance company, who had agreed to pay the stipulated sum for the death of her husband, their son, Atul, and daughter–in–law – who was seven months pregnant at the time – but not that of the unborn child.

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

Relying on this reasoning, the insurance company managed to get favorable verdict from the Yavatmal district judges which, however, directed the company to pay the claim for Atul. However, Kanta, did not give up hope and continued her legal battle.

And, when the matter came up before the Maharashtra State Commission as an appeal, the Commission decided to base its views on the parallel lines of US law which, under the Unborn Victims of Violence Act 2004, which makes it a crime to injure or cause the death of an unborn child against the will of the mother, thereby granting personhood to a human fetus.

"[Law] is not static but an instrument of socio–economic change," the Commission noted, ruling in favor of the woman.

The judges also observed that as the mother was seven months pregnant at the time of her death, the embryo has already turned into a fetus, attaining recognizable human form.

According to Justice B.B. Vagyani, who issued the ruling for the three–judge panel, November 6, 2006, the term 'human fetus' implies a living, growing organism. Since the unborn baby is living, the Commission reasoned, it is entitled to personhood, he reasoned.

The Commission noted there were no fetal anomalies. The post mortem report showed the presence of an enlarged uterus with fetus and placenta commensurate with seven months of pregnancy, the Commission noted.

Relying strongly on these grounds, the Commission ruled that the unborn child in the womb was a living human being and consequently a victim and the insurance company was obliged to pay the claim.

Many people, including Christian leaders and the medical fraternity has lauded the decision. "This landmark ruling is to be hail as a defence of life as it has recognised the value of human life whilst still in the womb of the mother and this is a great victory for life," Dr. Pascoal, member, Diocesan Human Life Committee, Mumbai, said.

"[This] is a great victory for life," he added.

"In permitting a separate insurance claim for the unborn child, the court ruling has given the unborn child rights commensurate with personhood, as a separate identity from the mother under law," said advocate Viraj Kakade.