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Legal subjectivity:  When can the baby start suing?

During the course of the ages, philosophers have argued the question as to when a person comes into existence:  At conception, or at birth?  In terms of the adage nasciturus  pro iam nato habetur quotiens de commodo eius agitur,1 an unborn is regarded as being already born as often as it is to the benefit of the unborn.  Surrounding this principle or adage from the Roman and Roman Dutch law,2 there are two viewpoints in South African law regarding the origin of legal subjectivity:

1.                  On the one hand there are those that argue that application of the principle has the effect of legal subjectivity being vested before birth;

2.                  while others aver that legal subjectivity is not antedated, but that interests of the unborn are kept in suspenso until such a time as the foetus is eventually born.

Because there are two viewpoints in this issue, there are also two explanations for it.  There are those that aver that legal subjectivity always and only originates at birth and that under the necessary circumstances, any interests the unborn may have, are suspended until birth because the nasciturus (= he who is about to be born) is only a potential legal subject until it is eventually born.  These jurists are of the opinion that the nasciturus-principle is a juridical fiction, because one works with a situation that does not factually exist, but is regarded for purposes of the law to exist, i.e. it fictionalises the birth as though it has already taken place.  Others are of the opinion that although legal subjectivity usually originates at birth, the origin of legal subjectivity may be antedated to conception whenever it will serve the best interests of the unborn.  These jurists work with the nasciturus-principle as a legal rule.  Van der Vyfer3 points out that it is not the birth that is fictionalised in the sense that birth is antedated, but only the legal subjectivity is antedated.  Therefor, he says, the principle is not a fiction, as nothing is fictionalised as having already occurred.

There are certain requirements for the application of the principle:

i.                    Application of the principle must be to the advantage or benefit of the unborn;

ii.                  The advantage or benefit must have accrued after conception;

iii.                The child must eventually be born in the legal technical sense.

Application possibilities of the nasciturus-principle

The principle of advantaging the unborn, is applied especially in the law of succession.  As far as the law of succession is concerned, is has long been an established rule that only legal subjects may vest a right in any estate upon delatio.4  In the law of intestate succession the nasciturus-principle is applied in order to grant the unborn the benefit of possible inheritance by postponing the distribution of the estate until the child is eventually born.  In the law of testate succession, the principle is mostly applied to those instances of class bequests, e.g. where a testator leaves his estate to "all my grandchildren alive at my death".  For example:  At the moment of delatio, the testator's one daughter is pregnant.  The benefit under the will is then kept suspended until the child is born, upon which the child entitled to his or her portion, provided it is born alive.  In South Africa this issue is now provided for in legislation:  The Wills Act, 7 of 1953 provides in sec. 2D (1) (c) that a benefit that accrues to a specific class of persons named in a will, vests in all those persons alive or already conceived at the moment of delatio. The legislator has created a rebuttable presumption that in cases of class bequests, it was the intention of the testator that all beneficiaries are to benefit equally.5  Obviously this presumption can only be applied if there is no indication to the contrary contained in the will.

The principle contained in the nasciturus-principle, has also been extended by South African courts to find application in the law of delict (tort).  A delict is an unlawful, culpable action that results in damages for another.  In the case of the culpable causation of death of the breadwinner, for instance, South African courts have found, by application of the nasciturus-principle, that the unborn has a action for damages against the causator as a result of the child's loss of maintenance claim against the father's estate.  In Chisholm v East Rand Proprietary Mines,6 the plaintiff's husband had been killed in a mining accident which was caused by the negligence on the side of the defendant, the owner of the mine, which was being held vicariously liable as the employer of whoever failed to take the necessary precautions.  The plaintiff was pregnant at the time of the accident, and she instituted a claim against the defendant on the basis that she had forfeited her entitlement to maintenance against her husband's income as a result of the defendant's (vicarious) negligent action.  The court further also had to decide whether the unborn child's right to maintenance had to be considered in calculating the quantum of damages that could be awarded.  The court found that the question can only be answered if the child has a separate ground for an action.  Applying the nasciturus-principle, the court found that the child indeed has such an action, and should therefor be included in considering the amount of damages to be awarded.  The court was of the opinion that the unborn child should be placed in the same position as it would have been if it had already been born at the time the accident occurred.

South African courts have similarly granted the unborn an action to claim satisfaction (as opposed to damages) for the infringement of its personal and bodily integrity.  In Pinchin and Ano. N.O.  v Santam Insurance Co.7 the court found that the child was entitled to compensation for injuries sustained while still a foetus.  In this case the father claimed against the defendant insurance company for damages in the form of injuries to his child which the plaintiff alleged were the result of a motorcar accident in which his wife was involved and which was caused by the negligence of the other motorist, insured by the defendant company.  He based the action on the supposition that the lesion which rendered the child cerebral palsied, was the result of the accident.  The court, applying the nasciturus-principle, affirmatively answered the question whether a child has an action for injuries sustained while still a foetus.  The claim failed, however, because it could not be proven on a preponderance of possibilities that the injuries sustained by the child were a result of the accident.  What is important in this judgment is Justice Hiemstra's remarks obiter regarding the application of the nasciturus-principle.  He is of the opinion that the child would ultimately also have an action for damages as a result of the intentional administering of a drug, such as sodium thalidomide, with the intent of damaging the foetus.  Similarly the child, says the judge, has an action in instances where an unsuccessful attempt at abortion damages the foetus.

This poses the question whether the nasciturus-principle is a fiction or a rule.  W. A. Joubert8 is of the opinion that in the Pinchin-decision the court did not have to find the answer in the nasciturus-principle, and that the application of the principle should be limited to the law of succession.  He does, however, make out a case for granting a delictual action on the basis of causal connection between the culpable action and the ultimate damage caused.  He makes the point that all elements of a delict need not manifest at the same time, as delictual remedies are available in law for consequential damages.  The conclusion is that the child would also have a claim in cases where an act taking place before conception results in damage to the child.  In other words, Joubert’s approach is simply that the child has an action after birth for the damages he experiences after being born.    Boberg, whilst of the opinion that the decision in Pinchin was correctly founded, supports the position that the nasciturus-principle be extended to allow the unborn an action for prenatal injuries.  It must be mentioned that Boberg is of the opinion that the unborn is vested with legal subjectivity in terms of the principle, simply because an interest of the unborn is at issue here, and should be protected.  Van der Merwe,9 however, is of the opinion that the unborn is already vested with legal subjectivity (without applying the principle), and therefor has a delictual action simply on the grounds of the infringement on its personality rights.  He thinks that the principle should not have been applied in Pinchin because the foetus was already a legal subject at the time the damage occurred.  Van der Vyfer10 thinks that the instant of conception in these cases is the origin of legal subjectivity, as it is not ideal for the law to work with fictions.  In his opinion, the nasciturus-principle has been elevated to a rule in Pinchin, and as a result of this development in our law, the principle has become a rule.

The decision in Christian League of Southern Africa v Rall11 merits brief mention at this point.  The respondent, Miss Rall, applied in terms of the 1975 Act on Abortion and Sterilisation (which allowed for abortion under certain limited and strict conditions), for an abortion on the grounds that the foetus was conceived subsequent to her having been raped.12  The applicant in the case applied to be appointed as curator ad litem to represent the foetus in the application for abortion.  Justice Steyn found that this is not possible in South African law.  The court found that the nasciturus-principle does not act to invest the unborn with legal subjectivity, but merely acts to keep the interests of the unborn in suspense until it is eventually born.  In terms of this decision, the principle is a fiction and not a rule.  The court was also further of the opinion that the principle should not be extended to allow protection of the foetus in applications for abortion.

The problem with applying the nasciturus-principle as a rule, is that the moment upon which conception takes place (which may be as far removed as 72 hours after intercourse, as sperm can (but usually doesn't) survive outside the male body for that long) is virtually impossible to ascertain with any reasonable certainty.  The moment of birth, however, is fairly easily ascertainable objectively, merely by applying the common law requirements (or simply looking at your wristwatch).  The principle furthermore does not allow for damages resulting from pre-conceptual actions by the mother or anyone else.13  It would seem therefore, that the weight of authority lies in the direction of the nasciturus-principle as fiction.

The matter has now been authoritatively decided by the Supreme Court of Appeal in Road Accident Fund v Mtati.14  The court unanimously confirmed the approach in Pinchin but disagreed that the child would necessarily have an action against the mother for prenatal injuries caused by her.  An action, according to the court, would only lie against the mother if she had breached an enforceable legal duty towards the child that she would have had in the event of the child eventually being born.  Thus, we still work with a principle in terms of which legal subjectivity as such is not antedated, but the rights are kept open, so to speak, until the eventual birth.

*  This topic was also the subject of a note by President Barack Obama in a 1990 Harvard Law Review, where he came to the same conclusion in respect of US law.

1 “He who is about to be born is to be regarded as already born whenever it is to his advantage.”  See Digest 1.5.7.

2 See Grotius Inleiding tot de Hollands Regts-Gerleertheyt, Amsterdam 1631, 1.3.4; J. Voet Commentarius ad pandectas Leyden 1698 – 1704, 1.5.5 and 39.5.12.

    31981 THRHR at 305 et seq.

    4Delatio is that moment when rights to benefits under the estate in terms of the law of succession accrue to the beneficiaries.  It normally happens at the death of the testator, but may in testate succession be postponed by the testator.

    5To my mind this should only apply where the testator was aware of the pregnancy before he died.  He could under no circumstances have conceived any intent regarding a foetus of whose existence he was ignorant.

    61909 TH 297

    71963 (2) SA 254 (W)

    81963 THRHR at 295

    91963 THRHR at  292

    101981 THRHR at 305 et seq.

    111981 (2) SA 821 (O)

    12It needs be mentioned that she had at this point already exhausted every other possibility, by attempting suicide by ingesting rat poison, and then alleging that she wanted an abortion because the foetus may have been damaged as a consequence.  The doctors nicely told her to go home and have the baby.  She then tried to persuade everyone that she was mentally not entirely sound - after all she had attempted suicide.  The doctors were probably less friendly and told her again to go home.  She then suddenly remembered that the boyfriend had "raped" her in the drive-in cinema.  She eventually gave birth to a healthy baby boy.

    13See, however, contra, Justice Hiemstra's remarks in Pinchin.  He was of the opinion that the child would have an action against the parent for preconcepetual acts that cause the child harm later on.

14 2005 (6) SA 215 (SCA).

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