Legal Personality and Birth Registration

Beginning of legal personality Legal personality begins at birth: foetus is not a legal subject. Requirements for the beginning of legal personality: 1. Birth must be fully completed: complete separation between mother & foetus; umbilical cord does not have to be severed 2. Child must live after the...

Beginning of legal personality Legal personality begins at birth: foetus is not a legal subject. Requirements for the beginning of legal personality: 1. Birth must be fully completed: complete separation between mother & foetus; umbilical cord does not have to be severed 2. Child must live after the separation: stillborn foetus does not acquire legal personality. Viability (child can live independently of mother) is not a requirement for commencement of legal personality in South Africa due to viability being a vague concept that could lead to impossible problems of evidence (how to determine viability, length of life before viable, etc.). 2.1 Determining whether a child was alive 1\. Purposes of criminal proceedings: Section 239(1) of the Criminal Procedure Act 51 of 1977: if the child has breathed, it was alive; child did not have to have independent circulation; child does not have to be entirely separated from its mother. 2\. Courts: rely on medical evidence: normally whether child breathed or not; any other medical evidence by which life may be proved should be acceptable. 2.2 Registration of births 2.2.1 Births and Deaths Registration Act 51 of 1992 1. The Director General of Home Affairs must be notified of the birth of every child that was born alive within 30 days of the child's birth. 2\. Duty rests on the parents to give notice: if neither can, notice must be given by: d. The person who has charge of the child e. The person the parents requests to do so 1. Anyone may apply to the Director General to assume a different surname 2. If a child's surname has changed, the birth register may be changed to reflect the change. 2.2.1.1 Naming of legitimate children under the act 1. Child must have a first name and a surname 2. Notice of legitimate child's birth: must be given under the surname of either parent or both surnames joined together: double-barrelled. 3. Children born as a consequence of artificial fertilisation of a woman who is a partner in a same-sex life partnership are also legitimate due to J v Director General, Department of Home Affairs: (2) thus counts for them too 2.2.1.2 Naming of extra-marital children under the act 1. An extramarital child is registered under surname of mother unless parents jointly request that the father's surname be used 2. If an extramarital child is registered under father's name, the father must acknowledge paternity in presence of person to whom the notice of birth is given and enter his particulars on the notice of birth 3. A father who wants to acknowledge paternity of an extramarital child and enter his particulars on the notice of birth after the birth has already been registered, may do so with the mother's consent 4. If the mother withholds consent, the father may apply to the high court for a declaratory order confirming his paternity and dispensing with the mother's consent 5. If an extramarital child is registered under her father's surname, the surname may only be changed with the father's written consent. 6. No provision is made in the act for double-barrelled surnames of extramarital children. 7. If the parents of an extramarital child marry after the birth has been registered, the register can be altered as if the parents were married at the time of birth. 2.2.1.3 Definition of extra-marital/legitimate 1. "Child born out of wedlock" (extra-marital) does not include children whose parents were married at the time of conception or at any time thereafter before the completion of the child's birth. 2. Concept of "marriage" has been expanded to include customary marriages and marriages concluded or solemnized according to the tenets of any religion: thus child = legitimate. 3. Religious marriages in (2) have not been afforded full recognition in our law, thus child is only considered legitimate for the purposes of registration of birth and not for all purposes