21 March 2023

The Janus Face of Fetal Citizenship: A Tool of Inclusion or a Threat to Abortion Rights?

Should citizenship status be conferred upon an unborn child? In a 2022 landmark decision, Pranav Srinivasan v. Union of India, the Madras High Court answered this question in the affirmative. Srinivasan had not been born yet when his parents, with his mother being in the third trimester of her pregnancy, gave up their Indian for Singaporean citizenship. Now an adult and ostensibly to avoid the mandatory conscription for Singaporean citizens, Srinivasan sought to avail himself of a statutory right to reclaim his Indian citizenship, pursuant to section 8(2) of the Citizenship Act 1955. However, the provision only grants “minor children” of Indian expatriates such a right upon reaching adulthood. To circumvent this limitation, Srinivasan argued that Indian citizenship was, in fact, conferred when he was en ventre sa mere, i.e. in the womb, as opposed to upon birth. Consequently, the provision in section 8(2) Citizenship Act ought to be construed widely, such that he could avail himself of the statutory right to resume his Indian citizenship upon reaching maturity.

Finding in favour of Srinivasan, the Madras High Court cited the United Nations Convention on the Rights of the Child (CRC) (of which India is a signatory) and domestic legal provisions, particularly the 1959 Hindu Succession Act and the 1988 Motor Vehicles Act, to find that unborn children have rights under Indian law. The Court interpreted the fetus’ status as a rightsholder as evidence of the unborn child’s possession of citizenship status. It followed then that the Citizenship Act 1955 could not be construed in a way that would confer citizenship only upon birth [paras 18-19].

Fetal Citizenship as a Tool of Inclusion

The Pranav Srinivasan case must be read against the backdrop of India’s citizenship law, which has been criticized for the politics of exclusion it evinces.  The Citizenship (Amendment) Act 2020 and the National Register of Citizens saga are two recent examples of this problem (see, e.g. here and here). However, the use of citizenship as a tool of exclusion can be traced all the way back to India’s hasty and haphazard partition by the British in 1947, and the sectarian nature citizenship questions subsequently assumed. India’s restrictive conception of citizenship is further driven by its geographical location amidst countries in the middle of ethnic and civil strife. This leads to a constant influx of migrants and refugees without any domestic refugee policy. Quite to the contrary, its geopolitical situation, and the supposed  ‘security’ considerations this gives rise to, are a core reason why India is famously not a party to the United Nations Statelessness Conventions or the United Nations Refugee Conventions. This has resulted in rising statelessness in India.

In contrast to this, the Pranav Srinivasan case appears to exhibit a decisively inclusionary conception of citizenship. Faced with an individual’s seemingly involuntary loss of Indian citizenship and their ineligibility for statutory redress thereof, the High Court decided to expand the reach of Indian citizenship by conferring it upon an individual prior to them having been born. The case’s real significance lies in the fact that to reach this conclusion, the High Court did not rely simply on the statutory requirement of ancestry (jus sanguinis) for conferring citizenship at birth. Instead, it also cited to Article 7 of the United Nations Convention on the Rights of the Child (CRC), which it read to support “the view that a child en ventre sa mere would be entitled to a host of rights, including citizenship [para 39.]”

In so doing, the High Court’s effectively incorporated the provision of the CRC into domestic law; a move that will have important ramifications beyond the issue in Srinivasan. As a dualist country primarily, treaties are not incorporated into the municipal system upon ratification in India without explicit domestic legislation to that effect. Where this has not occurred, Courts have instead resorted to creative judicial interpretation to incorporate select treaty provisions. The High Court’s reliance and approval of Article 7 of CRC is an example of such judicial incorporation. It supplements the decision of the Kerala High Court in Chaitanya Nair v. Union of India, which also observed that Article 7 of CRC obligates the State to not render a child stateless.

As India is not a party to the Statelessness Conventions or the Refugee Conventions, there have been several instances where children, primarily born to refugees and stateless individuals, or through modern reproductive technologies, have been rendered stateless. One prominent example is the case of Jan Balaz and his twin children, which ultimately led to a Supreme Court intervention that waived statutory nationality requirements to permit the children’s adoption.

Because Article 7 of the CRC obligates States to confer nationality on children upon birth, in particular where the child would otherwise be stateless, its incorporation into Indian domestic law by the High Court represents an important step forward in addressing statelessness among children in India. It matters, in this regard, that Article 7 does not condition the conferral of nationality on the basis of ancestry (jus sanguinis). Once a child is stateless, it presupposes that the state shall confer nationality upon the child without any conditions. As a result, the High Court’s use of the provision to justify the grant of citizenship to Srinivasan might also assist Rohingya children, who are stateless, in claiming their Indian citizenship.

The interpretation of the High Court thus is a progressive addition to the Indian citizenship jurisprudence. Its reliance on the CRC removes the role of the State which has pursued a politics of exclusion regarding stateless children. Stateless children born in India can now claim Indian citizenship, even in the absence of formal legislation to that effect. Stateless children can rely on Article 7 of CRC and the decision of the High Court to claim and assert their citizenship before the domestic Courts.

Fetal Citizenship as a Danger to Abortion Rights?

While we should applaud the Court’s inclusionary ethos, there may very well be an unintended yet deeply concerning consequence to its decision to grant citizenship to a fetus. Specifically, it might pose a serious threat to India’s progressive approach to abortion rights. The central problem the case raises in this regard is that by declaring a fetus a citizen, the Court likely also conferred personhood upon them. Thus, while under the Indian constitutional framework, one need not be a citizen to be considered a person, every citizen is necessarily a person. This matters because it is on the basis of personhood that the Indian constitution grants the fundamental rights to the right to life and liberty [Article 21]. As such, the recognition of fetal citizenship could operate to significantly limit the mother’s right to choose, whose importance the Supreme Court of India has repeatedly emphasized in a catena of judgments.

While the Madras High Court papers over this issue, noting that it would not apply in the case given advanced age of the fetus (30 weeks) [para 23], a recent case in the Delhi High Court illustrates this particular conundrum. The statutory framework governing abortion law in India [Medical Termination of Pregnancy Act 1971] permits abortion without restrictions in the first 20 weeks and with the permission of two doctors until the 24th week. Both the failure of contraceptives and conception without the intention of having children constitute sufficient cause to seek abortion up to twenty-four weeks, illustrating the law’s pro-choice ethos. Beyond 24 weeks, abortion remains permissible upon diagnosis of “substantial fetal abnormalities” by a Medical Board. In X v. GNCTD,  the Delhi High Court went even further and permitted the abortion of a 33-week-old fetus, despite rejection by the Medical Board. In so ruling, the Court emphasized the mother’s right to choose and the possibility of a dignified life for the unborn child as the governing criteria for determining the permissibility of abortion. In this particular case, it found the mother’s abortion decision to be made bona fide in light of medical evidence and reports suggesting that the child was unlikely to lead a dignified and self-sustaining life.

The aborted fetus in X v. GNCTD was three weeks older than the one in the Pranav Srinivasan case. This raises an important question. Suppose the dicta in the Pranav Srinivasan case is applied to the facts of the Delhi High Court in X v. GNCTD. Does the abortion in the X v. GNCTD effectively kill an Indian citizen?

Reconciling the Conflict

One possible way of resolving this dilemma might be found in a provision of the Hindu Succession Act, 1956, which the Madras High Court had cited to support its decision  to confer citizenship status upon an unborn child. Section 20 of the Act states that “a child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.”

The section makes clear that the unborn child would be entitled to their share in inheritance only after being “born alive”, despite accruing the share in inheritance before being “born alive” (in the womb). Similarly, the rights accruing due to the citizenship status of an unborn child could be vested only after birth. In fact, this is precisely what the Madras High Court did: while Srinivasan had acquired citizenship prior to birth, the benefits of citizenship, i.e. the rights his citizenship status entitled him to, were conferred upon him only after birth (after he had attained maturity as per Section 8(2) of the Citizenship Act). If rights accruing due to the citizenship status are only vested after birth, it follows that an abortion could not be construed as killing an Indian citizen. Suppose a person is pregnant with a 10-week-old fetus. Applying the dicta in the Srinivasan case, the 10-week-old fetus holds citizenship status. However, relying on the suggested interpretation, the rights associated with citizenship status would only be actualized and thus actionable after the birth.

This would ensure that an inclusive citizenship jurisprudence that confers citizenship status upon a fetus and a progressive abortion jurisprudence that centers the woman’s right to choose can exist harmoniously. By contrast, any contrary interpretation which uses fetal citizenship to defeat the women’s right to choose would be at odds with the inclusive intention of the Madras High Court.

SUGGESTED CITATION  Harsha, TPS: The Janus Face of Fetal Citizenship: A Tool of Inclusion or a Threat to Abortion Rights?, VerfBlog, 2023/3/21, https://verfassungsblog.de/the-janus-face-of-fetal-citizenship-a-tool-of-inclusion-or-a-threat-to-abortion-rights/, DOI: 10.17176/20230321-185300-0.

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