Nasc Fiction

2.3 The Interests of the Unborn

2.3.1 The Nasciturus Fiction

Legal personality begins at birth. The unborn cannot have rights, duties, or capacities before birth. The Nasciturus Fiction protects potential interests of the unborn by treating them as if they had been born, solely for their advantage. This principle is encapsulated in the Latin maxim: Nasciturus pro iam nato habetur, which translates to "the unborn is considered as born when advantageous." This legal concept allows unborn children to possibly benefit from rights and protections in scenarios like inheritance, despite their legal incapacity. The application of this principle is critical in ensuring that unborn children are not completely excluded from the benefits they might claim should certain legal circumstances arise that favor them post-birth.

2.3.2 Application in the Field of Succession

(a) Introduction

The Nasciturus Fiction is traditionally applied in succession law and remains primarily used in this field. It ensures that any potential future claims of an unborn child are protected at the time of succession. This protection stems from the need for equitable treatment of all potential heirs, acknowledging that an unborn child has the same potential claims as those already born, at least in terms of anticipated inheritance.

(b) Succession Cases

(i) Intestate Succession:

An unborn child cannot inherit unless they are alive at the time of the decedent's death. In cases of intestacy, the distribution of the estate is deferred until live birth is confirmed, thus ensuring that the unborn child's potential inheritance is safeguarded until birth. This delay in distribution is crucial to avoid the complications that would arise if an unborn child were to be treated as a legal heir without the certainty of their existence.

(ii) Testate Succession:

In matters of testate succession, the wishes of the testator are paramount. If a child is conceived but not yet born, they do not inherit unless explicitly mentioned in the will. However, a provision known as 'class gifts' allows children named in a class (e.g., "children of a specific parent") to include those who are born after the testator's death, hence providing flexibility in inheritance matters. This approach highlights the importance of clear testamentary language to avoid disputes. Clarity in a will regarding the inclusion of unborn children can prevent unnecessary litigation and confusion among surviving family members.

2.3.3 Maintenance After Birth

Parents are legally responsible for their child's maintenance, which directly impacts their succession rights. If a child inherits, they typically become self-supporting, which in turn affects the ongoing maintenance obligations that parents have toward the child. This concept serves to protect the financial interests of descendants while also encouraging parental responsibility post-birth. The law ensures that parents cannot unjustly benefit from the exclusion of maintenance responsibilities once a child inherits sufficient means to support themselves.

2.3.4 Legal Cases and Framework

The Nasciturus principles have been invoked in various legal cases to argue for the rights and responsibilities related to unborn children. A notable case is Shields v Shields, where the court addressed claims concerning maintenance rights for unborn children. The ruling established that agreements aimed at preventing maintenance responsibilities for unborn children are seen as contrary to public morals, thus reinforcing the legal protections available. This case exemplifies how courts can interpret existing laws in a manner that reflects contemporary moral perspectives regarding the rights of unborn individuals.

2.4 The End of Legal Personality

A person's legal personality ceases upon death, where deceased persons hold no rights or obligations. However, the law upholds certain protections for their remains and regulates the disposition in the interest of the community. The National Health Act 61 of 2003 established brain death as the legal criterion for declaring death, underlining the evolving definitions of legal personhood. This shift in legal definitions emphasizes the need for clarity surrounding the state of an individual at the time of death.

2.3.2 The Fields of Application

(c) Guardianship and Care

Legal relationships regarding guardianship are typically established post-birth, but regulations concerning these relationships may also occur pre-birth for coherence and efficiency in legal proceedings. This can be particularly relevant in contexts where legal disputes arise over the care of unborn children or when prospective parents wish to secure guardianship arrangements ahead of birth.

(d) Termination of Pregnancy

The legal framework currently does not regard unborn children as subjects of rights before birth. The law permits the termination of pregnancy under specified conditions, thereby protecting the rights of a woman to make decisions concerning her own body and health, while still navigating the complex moral landscape surrounding fetal rights. The legal stance on termination reflects a balance between the autonomy of the mother and the rights of the unborn, which continues to be a hotly debated issue in legal and ethical contexts.

(e) Constitutional Issues

The foetus does not possess specific rights or legal personality under current law. Thus, conflicts mainly arise between the rights of the mother and the perceived rights of the unborn. Legal protections for the unborn are not bestowed until birth, ensuring alignment with prevailing constitutional principles that prioritize individual rights over potential rights of the unborn. This dynamic necessitates careful legal consideration of cases where maternal rights may conflict with asserted rights of the unborn.

(f) Implications of Legislation

Recent legislative amendments reflect an evolving understanding of children’s rights and protections. Courts increasingly advocate for a careful balance between maternal rights and those potential rights of the unborn, promoting an equitable legal framework that seeks to protect all parties involved. As societal values shift, legislative bodies are tasked with reassessing laws to better align with contemporary views on rights surrounding unborn children and their families.