nascituris fiction law
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Private Law Assignment
This essay will discuss the legal subjectivity of the unborn foetus in terms of Common law, case law and statute law. A personal perspective will also be given on whether the unborn foetus should be given legal subjectivity or not. The question of when is a child given legal personality, the registration of births, the interests of the unborn child; such as patrimonial interests, personality interests, custody, abortion and birth control will all be addressed as well.
It is said that legal personality commences with the birth of the child but before that time the foetus is neither a legal personality nor does it have legal subjectivity. In terms of becoming a legal personality, there are a few legal requirements namely that the birth must be fully completed in the sense that there must be a complete seperation between that of the mother and of the foetus. However, for birth to be completed it is not required that the umbilical cord be severed. Another prerequisite is that the child is born alive, even if only for a short period of time. Legal personality cannot be obtained through the foetus being dead at birth or dying during birth. According to section 239(1) of the Criminal Procedure Act 51 of 1977it states that: At criminal proceedings at which an accused is charged with the killing of a newly-born child, such child shall be deemed to have been born alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it shall not be necessary to prove that such child was, at the time of its death, entirely separated from the body of its mother.
If one looks at the registration of births, the Births and Deaths Registration Act 51 of 1992 states that notice of the birth of a child born alive must be given within 30 days after the birth to the Director-General of Home Affairs...