“Greatest gift is human life and that we have a duty to protect the life of an unborn child”
– Ronald Reagan
Births, marriages, and deaths of natural persons in South Africa are regulated by the Law of Persons. From birth, a child acquires legal subjectivity.
In South African law, foetuses and unborn children do not have rights, duties, or capacities; there are, however, certain laws which safeguard foetuses and unborn children.
The Nasciturus fiction is a legal principle in which, if a foetus is born alive, it will acquire all the rights of its parents.
In the Bill of Rights, Sections 9, 10 and 11, everyone has inherent dignity and the right to be respected and protected in that dignity; everyone is equal before the law and has the right to equal protection and benefit of the law; and everybody has the right to life.
In legal terms, the Nasciturus fiction refers to the idea that foetuses, if they are born alive after having been conceived, acquire all the rights and privileges that children possess once they are born.
Pinchin and Another NO v Santam Insurance Co Ltd 1963
Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) confirmed that this principle applied to delict law as well.
In this case, a pregnant woman was travelling in a car which was involved in an
Accident and caused by the negligence of the driver.
The mother sustained injuries, and after the accident she had normal pregnancy until her child was born with cerebral palsy. The father of the child brought an action on behalf of the child for injuries sustained while in the
mother’s womb.
The court had to decide whether an action lies for a child for injuries suffered prenatally. The court stated that by application of the Roman law Nasciturus fiction, the child has an action. For the purposes of this article, damages outcomes are not relevant. What is important is the basis for the child’s claim
South African Common Law
A human being’s first breath and/or passage through the birth canal confers rights or the status of “right-bearership” on him or her, according to South African common law.
Currently, the Constitutional Court has not tested the common law against the constitution.
It is to be welcomed that the court declared parents of miscarried babies “have the right to bury” their babies, and certain provisions of the Act and the regulations are unconstitutional for denying parents this right.
