Imagine a society in which an unborn child’s rights are protected before they are ever born. Because of the idea of nasciturus fiction, this is not a fantasy but rather a legal reality under South African law. If the unborn child is eventually born alive, this fascinating legal principle permits a foetus to be regarded as though it had been born whenever it benefits the unborn child. The nasciturus fiction makes sure that the unborn are protected, for inheritance rights, and even for claims for damage incurred in the womb. However, what are the consequenses of this idea in modern law, and how does it operate?

The concept of nasciturus fiction has its origins in Roman law.

Nasciturus fiction, refers to the legal principle in which foetuses, will acquire all the rights of born children whenever this is to its advantage, subject thereto that they are subsequently born alive.

In South African common law, there are three conditions for the application of the nasciturus fiction:

  1. The fiction must benefit the unborn child (nasciturus). It cannot be applied if it would harm the unborn child or if only a third party benefits.
  2. The benefit to the unborn child must arise after its conception.
  3. The unborn child must ultimately be born alive.

No legal personality is granted to the foetus by implementation of the nasciturus fiction, it remains without legal subjectivity, and does not have, for instance, a right to life, that can be enforced on its behalf.

In the case S v Mshumpa and Another (2008), the court held that the killing of an unborn child does not constitute murder under South African law, as the fetus is not considered a legal person until birth. Another important case that emphasizes the rights of an unborn child is Pinchin and Another NO v Santam Insurance Co Ltd (1963). This case confirmed that a child born alive can claim for injuries sustained while in the mother’s womb, applying the nasciturus fiction. In terms of the right to life based on the nasciturus fiction, in the case Christian Lawyers Association v Minister of Health and Others (2005), the High Court ruled that the word “everyone” in Section 11 of the Constitution, which guarantees the right to life, does not extend to unborn foetuses. Therefore, foetuses do not have legal personality under the Bill of Rights.

Questions surrounding the nasciturus fiction and the rights of an unborn child become more complex when the death of the foetus occurs due to the mother’s negligence. It is a challenging concept to grasp, but the hard truth of our law is that the mother cannot be charged with murder because the Constitution does not recognise the foetus as a legal person.

The nasciturus fiction highlights the fragile interplay between legal principles and the rights of the unborn in South African law. While this legal concept provides some level of protection, it clearly reveals the reality that a foetus, despite its potential for life, lacks full legal recognition until birth. The untold stories of these unborn children, whose rights are uncertain, resonate within the justice system. This is a reminder of the complexities of our legal framework. In the end, the nasciturus fiction stands as a touching reminder of the limitations of our laws, while still offering a hint of hope.

Rights of the Unborn Child