Authored By: Carla Anthony
University of South Africa
Abstract:
This article presents comparative research examining the nasciturus fiction doctrine within South African law, in comparison to other jurisdictions, with a particular focus on wrongful life claims. The nasciturus fiction treats an unborn child as a legal person for certain beneficial purposes, raising many critical questions and debates around the rights and protection afforded to unborn children, especially in instances alleging wrongful life claims.
This article examines the legal frameworks and judicial approaches to fiction and wrongful life claims in South Africa and other jurisdictions, highlighting the similarities and differences within these jurisdictions. This article interrogates whether unborn children in wrongful life claims are guaranteed protection under the nasciturus fiction in South African law. Furthermore, it assesses the way South African courts deal with matters like this.
Ultimately, this comparative research seeks to aid in the understanding of the role of nasciturus fiction in wrongful life claims and the interests and rights of unborn children in South Africa compared to other jurisdictions. The findings suggest a potential pathway for legal development and refinement in this complex domain.
Introduction:
This article delivers a critical comparative discussion on the concepts nasciturus fiction and wrongful life claims in South Africa, discovering how the application of nasciturus fiction in South African law compares to its application in other jurisdictions particularly in cases of wrongful life claims with the aim of this article being to explore the similarities and differences between South African law and other jurisdictions on whether unborn children are guaranteed protection under nasciturus fiction and what the implications of this are for wrongful life claims in South African law.
The application of nasciturus fiction in wrongful life claims is crucial because it tackles complex questions about the rights and interests of unborn children, particularly in cases where they may be entitled to inherit or claim damages due to the negligence of a third party.
Nasciturus fiction is a legal principle derived from Roman law that was adopted into South African common law.1This concept posits that an unborn child in ventre matris if born alive, is considered to have been born and to have legal personality before the date of its actual birth, whenever this is to its advantage or in the interest of the child.2
The legal doctrine has profound implications for the rights of unborn children, particularly in the context of wrongful life claims which refers to pre-natal negligence claims that is brought on behalf of the child born with severe disability or defects against a medical practitioner who acted negligently and as a result failed to spot, diagnose or notify the parents of the child about the possible birth defects.3
Nasciturus fiction and wrongful life claims have been an ongoing debate all over the world with questions about the extent to which unborn children are accorded protection and how this impacts wrongful life claims cases. This article will unpack some of these critical questions around these concepts.
Body:
How South African law defines and applies nasciturus fiction in wrongful life claims:
South African law defines nasciturus fiction as a legal principle wherein an unborn child, if born alive, is considered to have been born and to have legal personality before its actual birth date whenever this is to its advantage.4 Historically, this fiction applied in cases of succession.5
Traditionally in South African law the nasciturus fiction was used in delictual claims such as in the case of Chisholm v East Rand Proprietary Mines Ltd (1909), where an unborn child was allowed to claim loss of support after its father’s death caused by delictual conduct, this is still the case in modern South African law however it has now been raised and applies to other cases as well.6
The question around whether a child has an action for prenatal injuries he or she has suffered as a result of a wrongful act from a third person appeared before the court in the case of Pinchin NO v Santam Insurance Co Ltd (1963). Judge Hiemstra applied the fiction to allow the child to recover damages from prenatal injuries, extending the fiction beyond its traditional application. Several writers argued that the fiction was not necessary in the case of delictual claims, arguing that the law of delicts is already sufficiently adaptable.7
Despite the nasciturus fiction arising in the Pinchin case, there have been more denials in wrongful claims in South African law than successes.8 The reason behind the constant denial of wrongful life claims stems from cases such as Friedman v Glicksman (1996) and Stewart and Another v Botha and Another (2008), arguing that it is against public policy to compare existence with non-existence.9
Although the Constitution explicitly states in Section 11 that everyone has a right to life10, it was declared by the High Court in the case of Christian Lawyers Association v National Minister of Health and Others (2004) that the constitutional right to life does not extend to unborn fetuses because they do not possess legal personality under the Bill of Rights. In Stewart and Another v Botha and Another 2008, it was stated that allowing wrongful life claims would require the court to value non-existence over the life of a disabled person, which is seen as violating the sanctity of life.11
Key differences and similarities between South African law and other jurisdictions in the application of nasciturus fiction in wrongful life claims:
Several jurisdictions deny wrongful claims similar to South Africa, such as England which prohibits wrongful life claims under Section 1(2) of the Congenital Disabilities Act 1976 (CDCLA). However, Section 1 provides a prenatal claim in the case that a child is born alive suffering disabilities as a result of the medical practitioner’s negligence, causing the child to be disabled.12 The leading case in England concerning these concepts is the McKay v Essex Area Health Authority case, where such claims were rejected due to the apparent intractability of quantifying damages.13
Germany also denies wrongful life claims because they believe that it is impossible to accurately calculate damages and that recognizing such claim would imply that human life is worthless.14 Other jurisdictions that also deny wrongful life claims include Canada, Australia, France and the United States (US).
On the other hand, there are jurisdictions that permits wrongful life claims such as the Netherlands who in the well-known Kelly case recognized and permitted wrongful life claims. The Dutch Supreme Court did not engage in the existence vs non-existence comparison such as in the case of Friedman v Glicksman (1996 1 SA 1134 (W)) whose reasoning was based on this comparison.15 Israel permits the wrongful life claim as well such as in the case of Zeitsov v Katz.16
It is clear from the information stated above that the key similarities between South Africa and other jurisdictions are their opinion that the nasciturus fiction is available for protection purposes however it is not used very often due to the argument that the law of delict is already appropriately pliable. In the case of wrongful life claims the similarities is shown in the rejecting of this legal principle due to public policy concerns and the constitutional status of a fetus. The one distinction I have identified is in the jurisdictions who permits wrongful life claims, focusing on the practical need for compensation to improve the child’s life and living conditions.17
Does nasciturus fiction guarantee protection for unborn (in ventre matris) children in wrongful life claims in South African law:
After concluding my research and having read through case law it is evident that the nasciturus fiction does not guarantee protection for unborn children in wrongful life claims. South African law has consistently denied wrongful life claims. Although this fiction is traditionally applied in
cases of succession it was extended at a later stage such as in the case of Pinchin NO v Santam Insurance Co Ltd however it does not extend to wrongful life claims.
Mukheibir (2006) states that, the nasciturus fiction, will also not be at the disposal of a child born with a handicap as a result of a doctor’s failure to order pre-natal diagnostic tests under circumstances where the parents, had the pre-natal tests been performed and had they been aware of the handicap, would have chosen to have the foetus aborted.
Thus indicating that the fiction is not a mechanism for protection in wrongful life claims especially in cases where it is alleged.18
Another example proving that the nasciturus fiction is not guaranteed to protect children in wrongful claims is the case of RAF v Mtati obo Zukhanye Mtati (2005), the SCA moved away from relying on the fiction for claims of pre-natal injury and instead applied the general principles of law of delict.19
It is clear that in South African law the nasciturus fiction is more applicable for matters of succession and certain pre-natal injuries. It does not operate to guarantee protection for unborn children in wrongful life claims which in South African law is not recognized and is consistently denied.
Conclusion
In conclusion, while nasciturus fiction which deems an unborn child to have legal personality if born alive when it is to its advantage has a long history in South African common law for matters such as succession its role in wrongful claims are non-existent.
South African law has consistently denied wrongful life claims as well as a number of other jurisdictions which demonstrates a preponderance of similarities over differences between jurisdictions, with just a handful of jurisdictions being the opposite and permitting wrongful life claims.
South African jurisprudence appears to be incline towards resolving such claims through the application of delictual law as oppose to the application of nasciturus fiction, thus asserting that the cause of action emerges upon the live birth of the child and suffering of damage as a recognized legal person, rendering the nasciturus fiction a redundant legal mechanism.
While existing delictual law provides a foundation for addressing certain issues, it is worth considering whether it adequately addresses the complex needs surrounding wrongful life claims and the rights of children. Further examination may be necessary to determine if additional attention or reforms are required to ensure a more comprehensive and equitable framework.
In H v Fetal Assessment Centre (2015) the court underscored the potential necessity for further development of the common law pertaining to wrongful life claims and children’s rights. This pronouncement reflects ongoing debates about how South African law might reconcile on deeply held values.20
Bibliography:
Case law:
Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T)
Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006) 27
Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA)
Books:
Heathon J, The South African Law of Persons (6th edn, LexisNexis 2021)
Legislation:
The Constitution of the Republic of South Africa, 1996
Congenital Disabilities (Civil Liability) Act 1976
Journal Articles:
Chürr C, ‘Wrongful Life Claims Under South African Law: An Overview of the Legal Framework’ (2015) 36(3) Obiter 745
Mukheibir A, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006)
1 Andŕe Mukheibir, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006) 27 188.
2Jacqueline Heathon, The South African Law of Persons (6th edn, LexisNexis 2021)12.
3 Chrizell Chürr, ‘Wrongful Life Claims Under South African Law: An Overview of the Legal Framework’ (2015) 36(3) Obiter 745
4 Heathon, Law of persons 12.
5 Mukheibir, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M 188. 6 Heathon, Law of persons 13.
7 Andŕe Mukheibir, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006 188.
8 Chürr, ‘Wrongful Life Claims Under South African Law.
9 Chürr, ‘Wrongful Life Claims Under South African Law Obiter 746.
10 The Constitution of the Republic of South Africa, 1996 Section 11.
11 Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA).
12 Chürr, ‘Wrongful Life Claims Under South African Law Obiter 759.
13 Ibid.
14 Ibid.
15 Mukheibir, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M 188.195. 16 Stewart and Another v Botha and Another, para 12.
17 Chürr, ‘Wrongful Life Claims Under South African Law Obiter 760.
18 Mukheibir, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M.
19 Mukheibir, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M.
20 Chürr, ‘Wrongful Life Claims Under South African Law Obiter 748
