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Legal Framework for Representation before Birth

• An agent can represent a child only after birth; until then, the parent must have parental responsibilities and rights.

• Parental responsibilities and rights arise only upon the birth of the child.

• If a parent wishes to negotiate benefits for an unborn child, they must apply the mechanism of a contract for the benefit of a third party.

Contract for the Benefit of a Third Party

• A parent (A) can enter into a contract with another party (B) for the unborn child (C).

• C, the unborn child, is not a party to the contract, meaning it does not affect their rights.

• After C's birth, A can accept or decline B's offer.

• Example: Future spouses can stipulate in an antenuptial contract that their future children will inherit specific property upon birth.

Termination of Pregnancy

• The topic of termination of pregnancy (abortion) is traditionally included in discussions of the nasciturus fiction, despite it not directly aligning with the unborn child's interests.

• The Choice on Termination of Pregnancy Act of 1996 allows for

  • Termination on Demand:

    • During the first 12 weeks of gestation.

    • It can be based on various grounds after 12 weeks.

Grounds for Termination

• Before 12 weeks:

  • Termination can occur at the pregnant woman’s request.

• From 13 to 20 weeks:

  • Requires opinion from a medical practitioner that any one of the following conditions exists:

    1. Risk to woman’s physical or mental health.

    2. Substantial risk of severe fetal abnormality.

    3. Pregnancy resulting from rape or incest.

    4. Significant impact on the woman's social or economic circumstances.

• After 20 weeks:

  • Allowed only under serious conditions regarding the woman's or fetus's health, with consent from qualified medical personnel.

Consent for Termination

• Informed consent from the pregnant woman is necessary before termination.

• No additional consent is required if the woman is capable of giving consent.

Minors and Termination

• A medical practitioner must advise a pregnant minor to consult with parents/guardians before proceeding with termination, but cannot deny her request.

• In surrogate situations, the surrogate must inform commissioning parents of her decision about termination, but ultimately it is her choice.

Court Rulings

• The case Christian Lawyers Association of South Africa V The Minister of Health examined whether minors can consent without parental involvement.

• The court maintained the Act’s requirement of informed consent from the pregnant woman.

• It emphasized that rights to bodily integrity entail a woman's right to terminate pregnancy, supporting her constitutional rights of dignity, privacy, security, and reproductive decision-making.

Legal Subjectivity of the Fetus

• South African courts previously ruled that a fetus is not a legal subject with enforceable rights before birth.

• The constitution provides rights to individuals post-birth, affirming that rights do not extend to the fetus.

Conflicts of Rights

• In cases where there is a conflict over termination between a woman and the father, the law affirms the woman’s right to make the final decision regarding her pregnancy.

• The framework prioritizes women's rights to control their bodies, emphasizing dignity, privacy, and gender equality.

Conclusion

• The current legal framework reflects a commitment to uphold women's reproductive rights, with particular attention to consent and the implications of decisions surrounding pregnancy terminations.