The inconsistent application of the status of the foetus under South African law: Comparative insights from the UK, Kenya and Colorado
In South African law, legal personality is conferred only upon live birth, in line with the common law “born alive” rule. Under this rule, a foetus is not considered a legal subject and therefore cannot hold rights or duties in law. However, this position is challenged by statutory provisions that offer recognition to the unborn. Notably, the Choice on Termination of Pregnancy Act 92 of 1996 (CTPA), the Births and Deaths Registration Act 51 of 1992 (BDRA), Intestate Succession Act 81 of 1987 (ISA) and the Wills Act 7 of 1953 contain provisions that, while not granting complete legal subjectivity to the foetus, imply a legal interest and, in other circumstances, legally recognise its existence. CTPA permits abortion on request during the first trimester but imposes restrictions in the second and third trimesters. These imposed restrictions suggest a graduated state interest in the developing foetus. Section 18 of the BDRA mandates the issuance of burial orders for stillbirths occurring after 26 weeks of gestation, which is a recognition of the foetus’s posthumous dignity. Furthermore, section 2D(1)(c) of the Wills Act and Section 1(c)(ii) of the Intestate Succession Act allow a foetus to be recognised as a legal subject for purposes of inheritance. Collectively, these provisions introduce a contradiction into South Africa’s legal framework, where the foetus is denied legal subjectivity in terms of common law, yet it is conditionally acknowledged in statutory law under certain circumstances. This study critically examines these legal inconsistencies using legal paradigms, a dominant framework or models for understanding, interpreting, and applying law, which include legal constructivism, legal positivism, and critical legal theory. This will provide insight into whether South African law is evolving toward a more practical and legally sound approach to the unborn. It also explores other fields of study, which are based on scientific findings on the origins of human life. The failure of the South African legal framework to establish a consistent standard for determining the onset of legal subjectivity leads to social injustice. These social injustices result from the contradiction between statutory law and common law, causing unequal treatment of people in society. The research will evaluate the impact of these inconsistencies on constitutional values such as social justice, dignity and equality, especially for woman and grieving parents. The study will look at international treaties and conventions to understand how international instruments determine when a person is considered to have legal status in international law. It will also compare South Africa’s laws with those of Colorado (USA), England (UK), and Kenya. While all these jurisdictions have their own standards for determining legal status, their laws differ in their interaction with the determination of the legal status of a foetus. The study will examine whether South Africa’s partial recognition of the foetus is consistent and provide a solution to the impact of the inconsistent application of law, which will advance people’s rights and the integrity of South African law.
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