The nasciturus fiction, refers to the legal principle in which foetuses, if born alive, will acquire all the rights of born children whenever this is to its advantage. Although in general, being without legal subjectivity, the foetus has no rights or duties, there are certain measures in the South African law which provide for its protection if it is subsequently born.

There are three requirements in South African common law for the operation of the nasciturus fiction namely:

a) The fiction must operate to the advantage of the nasciturus. The fiction may not be applied if it would be to the disadvantage of the nasciturus, or where only a third party stands to benefit.

b) The benefit to the nasciturus must accrue after its conception.

c) The nasciturus must be born alive, in the legal-technical sense outlined above.

In essence, no legal personality is granted to the foetus by applying the nasciturus fiction; it remains without legal subjectivity, and does not have a right (to life, for instance) that can be enforced on its behalf. The benefits accruing to it through the fiction are held ‘in suspense’ until it is born.

Statute does not assign a definition to the ‘viability’ of the unborn child, but case law, relying on the courts’ discretion, attempts to ascertain the meaning of the term. In S v Mshumpa and Another 2008 (1) SACR 126 (E) the court accepted that the unborn child’s capability to live outside its mother’s womb begins at 25 gestational weeks. However, this judgment was overturned in S v Molefe 2012 (2) SACR 574 (GNP) where the court deemed it necessary to give a verdict that fetal viability commences at 28 gestational weeks. For this reason, the distinction made by the courts between unborn children who have reached the viability stages and those who have not is insignificantly a technical issue and the assertions made by our courts that, life begins after birth, or at a certain number of ‘minimum’ weeks, or at a certain viability stage, do not outweigh the clear legal obligation of a state to recognize human life prior to birth. The question however remains whether an unborn foetus acquires the same rights as born children, prior to life outside the womb.

The law of succession in terms of an unborn child

The rules that dictate how a person’s estate is devolved are set out in the South African law of succession. These rules include who may inherit, what can be inherited, and the different duties and obligations in terms of a deceased’s estate. However, going back to the initial question, how will the interests of a child be protected if you pass before he/she is born?

South African law states that a beneficiary should be alive or conceived on the day of a testator’s death. Since the transfer of rights is a requirement for succession and an unborn child cannot inherit or bear rights, what happens to the bequest? The bequest is held over and vests once the child is born alive. This is in terms of the common law concept of nasciturus fiction as mentioned above.

In terms of this nasciturus fiction, a child who is born alive and conceived prior to a testator’s death is considered to have obtained rights from the moment he/she was conceived. Therefore, a conceived yet unborn child is not regarded as a legal subject; however, this principle caters for the eventuality that the child will become a legal subject. The nasciturus fiction states that an unborn child has the required legal personality to inherit.

In conclusion, an unborn child can inherit in terms of testate succession where there is a last will and testament and intestate succession where there is no will if the principle of nasciturus fiction is applied, provided that the requirements are met. It is essential to make sure that when considering the protection of your unborn child or grandchild’s future in terms of the South African law of succession, you are aware of your rights, the rights of the unborn child and what is required by the law. Consult with a legal professional (for instance an attorney) before attempting to start any process or responding to any process yourself.

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