Report No. 62

2.10. Section 2(1)(d)-unborn child of the workman.-

At present, the Workmen's Compensation Act does not contain a specific provision for the rights of an unborn person. If a strict textual interpretation is adopted, his rights will not be regarded as covered by the item in the definition of "dependant" which relates to "children".

2.11. It may be noted that in England it has been held that damages may be recovered under the Fatal Accidents Act, 1846, for the benefit of a posthumous child.1 Ownership may be vested in a child in the womb and such a child constitutes a "life" for the purpose of the rule against perpetuities.2 So too, such a child can be a "child of the family", within section 16(1) of the Matrimonial Proceedings (Magistrates Courts) Act, 1960.3

There is an interesting provision in the Hindu Succession Act as to the right of an unborn child which reads as follows:-

"20. Right of child in womb.-A child who was in the womb at the time of the death of an interstate, 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 death of the intestate."

1. George and Richard, 1971 LR 3 Ad&E 466.

2. (a) Elliot v. Lord foicey, 1935 AC 209 noted in 9 ALJ 294; (b)Stern (in re:), Bartlatt v. Stern, 1968 Ch 732: (1961) 3 All ER 1129.

3. Caller v. Caller, (1966) 2 All ER 754.