Legal Subjectivity at Birth in South Africa

Beginning of Legal Subjectivity

• Legal subjectivity starts at birth, before this a foetus doesn't have legal rights
• Birth is regulated by common law
• Legal subjectivity requires complete separation from the mother without needing the umbilical cord being cut.
• It also requires the ability to live independently, indicated by breathing, crying, or a heartbeat
• A stillborn foetus or a foetus that dies during birth doesn't gain legal personality.
• South African law doesn't require viability for legal subjectivity, although some academics disagree
• Viability means the foetus has reached a stage of development where it can live independently

South African Position

• Section 239(1) of the CPA 51 of 1977 addresses killing a newborn
• A child is considered born alive if they breathed
• Criminal rules exist to prohibit killing newborns
• Section 1(1) of the Births and Deaths Registration Act 51 of 1992 concerns registering child births
• The Director-General of Home Affairs must be notified of every live birth

Protection of the Unborn Foetus

• While legal subjectivity begins at birth, the law may protect an unborn foetus' interests
• Protection occurs through:
  • Nasciturus fiction
  • Succession laws

Nasciturus Fiction

Introduction

• A foetus lacks legal personality, rights, duties, and capacities
• The law recognizes situations where a child’s interests need protection before birth
• The law uses nasciturus fiction to protect the potential interests of the unborn child when needed
• The Latin definition of nasciturus fiction is: nasciturus pro iam nato habeteur quotiens de commodo eius agitur, meaning an unborn child is deemed to have been born already if this is to their advantage

Explanation

• If a nasciturus would have had rights if already born, those rights are held in abeyance
• The rights are suspended until the child is born alive and gains legal personality
• If the child is never born alive, the rights are never acquired

Requirements

• Nasciturus must be conceived when the benefit would have accrued
• Nasciturus must be born alive
• Benefit must be to the advantage of the nasciturus

Application

• Nasciturus fiction applies mainly to succession and delict
• Modern South African law applies the fiction more broadly

Law of Succession

Intestate Succession

• Delatio, when the estate falls open, happens when the testator dies, and the person must be alive
• A conceived but unborn child wouldn't qualify to inherit if this principle was strictly applied
• The Nasciturus fiction protects the potential interests of an unborn child
• If the nasciturus is conceived when the testator dies, then Nasciturus fiction is applied to keep their interests in abeyance
• The estate is postponed until the nasciturus is born
• If the child is born alive, they inherit as if they were alive when delatio took place
• If the child isn't born alive, they don't obtain rights

Testate Succession

• The testator leaves a valid will that must be followed

• Only those alive at the testator's death should inherit

• Nasciturus fiction may apply, creating two scenarios

  • If the testator clearly states their intention for an unborn child to inherit, that intention is carried out
  • If the intention isn't clear and the testator refers to a class of beneficiaries, a child conceived but not yet born at the testator's death can inherit

• It's presumed the testator wanted them to benefit, unless proven otherwise

• This presumption is in Section 2D(1)(c) of the Wills Act 7 of 1953

  • This section provides that the children who are alive at the time of devolution will inherit
  • Also those already conceived at that time and later born alive

• Nasciturus fiction is part of statutory law

• Refer to Ex parte Boedel Steenkamp 1962(3) SA 954 (O)

Customary Law

• The Additional Customary Law principles are in relation to section 2D(1)(c) and Section 4(2) of the Reform of Customary Law of Succession and Regulation of Related Matters Act

Law of Delict

• Nasciturus fiction allows a child to claim damages for prenatal injuries
• This application of the law of delict was confirmed in Pinchin v Santam Insurance Co Ltd, in addition to RAF v Mtati

Protection of Unborn Child in Succession

• The interests of an unborn child receive protection through Nasciturus fiction
• Other rules that protect the unborn are found in common law and statutory measures

Common Law

• A court will assign a curator ad litem when the interests of an unborn or unconceived person are concerned

Statutory Measures

• Statutory measures protect the interests of the unborn in succession
  • The Immovable Property (Removal of Modification of Restrictions) Act 94 of 1965 applies when the unborn has an interest in immovable property
  • The General Law Amendment Act 62 of 1955 allows consent to mortgage property on behalf of the unborn child
  • The Administration of the Estate Act 66 of 1965 allows the master to approve land subdivisions on behalf of the unborn heir