Nasc Fiction

The South African Law of Persons

Forename Changes: The Act allows for the change of forename without stipulating grounds for application. Applications for minors can be made by either parent. Adults must personally submit their applications, ensuring accountability and preventing misuse.

Common Law: Legal personality begins at birth; thus, the unborn (nasciturus) is not a legal subject and cannot hold rights or duties.
Nasciturus Fiction: Protects potential interests of the unborn, considering them as having been born at conception when it serves their advantage, allowing them to benefit from wills and inheritances despite not being born yet.

If a deceased dies without a will, the estate is distributed according to intestacy laws. The unborn cannot inherit if they have not been born alive at the time of the estate's 'opening' (delatio), which occurs upon the deceased's death. The distribution is postponed until it's confirmed whether the child is born alive, ensuring fairness in the process. If the child is born alive posthumously, they inherit as if they were present at the deceased's time of death, illustrating the protective nature of the law.

If a will exists, the testator’s intentions guide inheritance. Unborn Children: Specific directives such as “children born or yet to be born” allow children conceived but not yet born to inherit if they are born alive after the testator's death. This reflects a recognition of potential life and the corresponding rights.
Ex parte Boedel Steenkamp Case: Illustrated the principles concerning unborn children and inheritance rights, emphasizing the necessity for wills to be precise to protect the interests of the unborn.

A child’s right to maintenance depends on parental ability to provide support. If a child inherits, they may be considered self-supporting, thus potentially lowering parental obligations.

Courts provide for child maintenance during divorce proceedings, which may include unborn children before actual birth. Previous positions on this matter, particularly in Shields V Shields, indicated the complexity of rights regarding unborn offspring, highlighting areas of ongoing legal evolution and debate.

Pinchin V Santam Insurance Co Ltd: Established the possibility of a child claiming for injuries sustained in utero, creating a legal precedent for potential liability of third parties. The court acknowledged the nasciturus fiction could validate claims for damages, although its application has been controversial.
Consensus in Law: Most legal commentators argue the ordinary principles of delict would suffice to warrant claims for pre-natal injuries without relying explicitly on the nasciturus fiction.

In Road Accident Fund V Mtati, the court held ordinary delictual principles apply to prenatal injuries, affirming the child's right to claim damages post-birth without invoking the nasciturus fiction, broadening the scope for accountability.

Courts may include provisions regarding guardianship and care in divorce orders to facilitate a smooth transition once the child is born. Such regulations respond to practical necessities rather than intend to protect the unborn directly through the nasciturus fiction, emphasizing the child's welfare.

Termination of pregnancy is permissible under the Choice on Termination of Pregnancy Act 92 of 1996 during specific gestation periods. It allows terminations in the first trimester on the woman's demand and later based on health or fetal issues, ensuring a balance between rights and moral considerations.

Consent Necessity: Termination requires informed consent from the woman alone, even if she is a minor, emphasizing her autonomy and rights as per constitutional provisions, and recognizing the sensitive nature of reproductive rights.

Sterilisation Act 44 of 1998: Allows voluntary sterilisation of individuals aged 18 and over, with strict guidelines for minors, recognizing informed consent as paramount. The Act highlights the importance of comprehensive assessments from medical panels before proceeding with sterilisation to protect the interests of potentially vulnerable individuals.

The courts have consistently ruled that a foetus has no legal standing or enforceable rights until born alive. This stance was examined in Christian Lawyers Association of South Africa V The Minister of Health, where the Constitution's recognition of individual rights does not extend to the unborn, reinforcing the principle of maternal autonomy.

The legal personality of a natural person begins at birth, with the nasciturus fiction allowing for exceptional circumstances where the unborn’s interests can be protected. Legal disputes involving unborn children highlight the tension between unborn rights and maternal autonomy, showcasing the evolving nature of legal interpretations in this area.