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Thursday, June 30, 2022
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The interest of the unborn child

According to the Oxford English dictionary, the word 'person' has the following definitions: “A character sustained or assumed in a drama or the like, or in actual life; an individual human being- a man, woman or child”.

In terms of South African law, a person may be defined as a human being, an entity or even an association capable of having legal rights and obligations. According to current South African law, legal personality for human beings begins at birth. The Constitution of the Republic of South Africa as well as the Children's Act both define a ‘child’ as a person below the age of eighteen years old. This logically implies that legal persona begins at birth and that the law views a

"child" as someone between birth and eighteen years of age.

The law is vastly different from morality or ethics, as it brings assurance and certainty in particular human circumstances. The law is very just and fair in that it does recognize that there might be circumstances in which it may become necessary to acknowledge the unborn as a potential legal person, hence the Romans developed the legal instrument of nasciturus fiction. Nasciturus fiction originates from the law of succession and was invented to cater for perceived unfair situations. This essay seeks to discuss nasciturus fiction in South African law with specific reference to legal subjectivity.

Nasciturus fiction, derived from Roman law, offers that where a benefit ascends that would have accrued to the foetus had the foetus already been born alive, then the legal situation will be suspended until such time as the foetus is born. If the foetus is not born alive, the benefit cannot vest in the foetus. The fiction only comes into operation when and if a foetus is born alive, at which point legal personality is obtained and legal rights accrued. The fiction does not lie in imparting legal personality to the unborn foetus as there is “no legal need for it”. The Ex parte Boedel Steenkamp case is concrete evidence of this. The court held that children in ventre matris(in the mothers' womb) are viewed as already born whenever it is a matter of their advantage, and that the fiction will only come into function if the foetus is later born alive . However, one should note that this is not conferring any legal personality upon the foetus. In the Christian league of Southern Africa v Rall case, the court held that the “Nasciturus fiction confers no legal subjectivity on the nasciturus (foetus)”.

S 2D (1) (C) of the Wills Act 7 of 1953 provides that any benefit owed to children, shall vest in those children who are alive at the time, “or who have already been conceived at that time and who are later born alive”. Evidently the benefit is quite subject to the child being later born alive, at which point legal personality is obtained and rights accrued. The benefit only accrues to the child once he/she is later born alive, and therefore the act does not confer any legal subjectivity upon the foetus. The unborn child is deemed as having been born whenever it is to his/her advantage, however the advantage only confers upon the child once born alive, at which point a legal persona obtained.

Nasciturus fiction can easily be misconstrued with regard to legal subjectivity. The Fiction does not regard a foetus as a person, but merely as a potential legal person. According to the Canadian case of Montreal Tramways Co v Leveille (1933) 4 DLR 337 (SCC), “It is but natural justice” that a child, if born alive and viable, should be allowed to benefit from a situation due and accrued to that point. The Choice on Termination of Pregnancy Act 92 of 1997 further solidifies this point. There have been challenges to the statute on the basis that it infringes the foetus’ right to life, as sheltered by S11 of the Constitution of the Republic of South Africa. However the challenges have been unsuccessful as a right can only be held by a legal person, and therefore the termination of pregnancy is not a termination of legal personality.

Although Nasciturus Fiction appears to maneuver outside of the region of legal personality, one should note that the Fiction is used to solve certain legal discrepancies or disabilities and also to assure sound justice to all legal persons. In the case of Pinchin No v Santam Insurance Co Ltd 1963 (2) SA 254 (W) , the court assured sound justice by providing that the Nasciturus Fiction can found a claim in delict for harm suffered by a foetus in utero . A key point in the judgment is “If subsequently born alive, is deemed to have all the rights of a born child”  which reassures that no legal subjectivity is conferred upon the foetus, as the legal rights are accrued only at birth at which point legal persona is obtained.

Arguments have stemmed from applying the nasciturus fiction to delictual claims, on the basis of the foetus not being a legal subject and subsequently not having legal personality. “The foetus is not in existence, so against whom the infringement taken place has?” .The infringement has taken place upon the child who becomes a legal subject at birth. Denying a child these legal rights would result in gross injustice. The fiction does not take away nor does it replace the application of the values of the law of delict, it actually invokes the application of the principles of delict. The Union Government v Lee 1927 AD 222 case provides that “Rights can accrue in favour of an entity who is a person either in fact or by a fiction of law”.

In closing, it can be said that Nasciturus Fiction does not confer any legal rights upon the nasciturus (foetus), the rights are merely kept in abeyance until the foetus is subsequently born alive. When such arguments stem, it is important to consider the function, purpose, as well as the intention, of not only the nasciturus fiction, but the law itself. The fiction is aimed at catering for perceived unfair situations. The fiction, as well as the legal system is aimed at assuring sound justice to all people

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