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Published: Fri, 02 Feb 2018

Birth and our legal system

“The term ‘birth’ plays an important role in many subsections of our legal system. In addition, it is obvious from the outset that this term is not always used to convey the same meaning”

I agree with the above statement as it is clear that perceptions at the moment of birth differ from person to person, whether it is emotional, economical, spiritual or legal. The fact is birth is the beginning of life, the beginning of one’s personal life of family and friends and more importantly one’s legal life or status. It is possible to assume that without an indication of life, the first breath the child takes, the child is not born in legal terms at all. In this essay a discussion will be held which includes: the legal systems concerning birth, the protection of the foetus etc with reference to the relevant laws applicable to birth.

Legal subjectivity begins at birth if the birth is successful. It is of importance to take notice of what is required by law to acquire legal subjectivity; requirements determined by Common Law are as follows: The body of the nasciturus or foetus must be separated from the body of the mother; it is not required that the umbilical cord be cut; the child must live after being born, even for a short period of time; a child that is stillborn is not regarded as a legal person. In cases of the murder of a new born child, the child would be deemed as being born alive if it had breathed. It is also not required that the child was breathing on its own nor if the child’s body was completely separated from the mother. There are authors who believe that the child must have reached a level of growth whereby it can live independently.

The successful birth of a child does affect the legal system with reference to legal subjectivity, however if it is evident that a child is only considered to have rights after birth, how is the foetus protected by law?

If in instances when a foetus may inherit property of a deceased person the law will make provisions for the foetus’ rights to own that property. This is done by the application of the nasciturus fiction and the nasciturus rule. The nasciturus fiction protects the advantage of the foetus but the foetus must be born alive. “A 3rd party may benefit from the nasciturus fiction but only under natural consequences. The fiction applied will be to the benefit of the fiction and not only for benefit of the 3rd party.” The fiction is applied to the field of testate succession and intestate succession. Intestate succession occurs whenever a deceased person fails to prepare a valid will which states how to devolve his property. The rule of intestate succession states that one is only able to inherit if he is alive at the time that the estate falls open, thus the nasciturus will not inherit but by applying the rule of the nasciturus fiction, the foetus will be able to inherit. Testate succession occurs when a deceased has made provisions in a valid will. An example of a case is the Ex Parte Boedel Steenkamp: A testator left property in a will to his daughter and her children who are alive at the time of his death. At the time of his death his daughter had 2 children who were alive and was expecting another child who was later born alive. The legal question was if the unborn child would also inherit a share of the property.

-Although the testator stated: “Grandchildren who are alive at the time of my death”, this did not go against the decision made by the court allowing the child to inherit as the court presumed that the testator would not exclude his grandchildren who were born later.

The Births and Deaths Registration Act 51 of 1992 requires that the child be registered within 30days to the Director-General of Home affairs stating its name and surname. If the parents are married, the child takes the surname of the father and in the case of an out of wedlock birth, the child takes the name of the mother but the surname of the father may be registered upon consultation between parents. Civil and Common Law are also put into affect thus to register the child as legitimate.

As stated in the above discussions birth does play an important part in the legal systems of society, whether it is Common Law, Customary Law, Civil Law etc. The birth of the child gave rise to many other legal system denominations. Even before birth the foetus also was given protectoral rights, however a successful birth is required. As modern society evolve so does the Law. Therefore I agree that the term birth has many different views and situations and not just its process, which all gave rise to many consequences. If people were just born in a natural sense and not just in a legal sense, then there would be no law to protect the development of human society.


Law of persons-Heaton

Law of persons 2nd Edition Case Book-Davel &Jordaan


University of Pretoria Section 3 Legal Subjectivity





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