Nasciturus fiction: Relics of outdated perspective

September 1st, 2019
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The desire to prevent antenatal harm and the need to pre-empt foetal mortality has universally necessitated legal protection of unborn children. To achieve this goal, scientific and legal mechanisms designed to fortify the security and well-being of a foetus have been developed not only on a national level, but also internationally. In this opinion piece I endeavour to prove that modern scientific jurisprudence and legal developments favour the recognition of unborn children and their respective interests. By relying on international and scientific advancements, the conclusion that I reached is that unborn children must enjoy the legal status and fall under the scope of legal subjectivity.

Legal protection was traditionally accorded only to human beings and corporate entities. However, the increasing demand for the protection of other different entities such as companies, animals and artificial intelligence has gradually led to the recognition of a separate legal personality for such other entities. This novel approach has shifted the orthodox-based dichotomy and, as such, entities that were once viewed as objects now enjoy legal recognition and protection (Lissette ten Haaf ‘Unborn and future children as new legal subjects: An evaluation of two subject-oriented approaches – the subject of rights and the subject of interest’ (2017) 18(5) GLJ  1091 at 1092).

The scientific individualisation of an unborn child of a pregnant woman justifies the call for the law to recognise the foetus’ independent legal status. This approach views a pregnant woman and the unborn child as entities of distinctive value with separate needs (Camilla Pickles ‘Approaches to pregnancy under the law: A relational response to the current South African position and recent academic trends’ (2014) 47(1) De Jure 20). Indeed, even medical practitioners readily make medicinal and nutritional recommendations for the avoidance of prenatal harm and/or foetal mortality. This is because life, science and the law demand the protection of unborn children from any form of harm. But why? Does this imply that unborn children enjoy full legal status? Or must a foetus be protected to the extent of its advantageous claim?

Science and technology: Approach to unborn children

The annals of history tell us that it was somewhat difficult in past days to determine whether a foetus was alive or dead inside the womb of a pregnant woman. Doctors had to use foetal dopplers and stethoscopes to listen to a baby’s heartbeat, and they used a tape-measure to measure the foetal length and make sure the foetus was growing. This paradigm has, however, progressively shifted to more reliable scientific developments.

Accordingly, modern health institutions (public and private) rely on scientific inventions so as to ascertain the factual existence, living, health, together with the well-being of a foetus. Ultrasound machines and other technological inventions are an example in this respect. Theirs is to determine and confirm pregnancy; to monitor the child’s growth and position; to check the age of a child, identify its gender and so forth. Here the foetus is simply recognised as a living person with gender, gestational age, size, and so forth, but only unable to act on an external world.

Universal Declaration of Human Rights

Though not a binding instrument under international law, the United Nations Universal Declaration of Human Rights (GA Res 217A (III), UN Doc A/810 at 71 (1948)) (UDHR) has been profoundly considered as a foundational document, which inspired the subsequent conventions and declarations based on human rights. Its preamble envisions equal and inalienable rights for all members of the human family. ‘All members’ must be so construed it is argued that it encompasses unborn children, irrespective of any status of the child (Patrick J Flood ‘Does international law protect the unborn child?’ http://www.uffl.org, accessed 8-10-2018)).

Article 3 of the UDHR further postulates that ‘everyone has a right to life’. ‘Everyone’ it is argued, must be interpreted in a manner that will be inclusive to foetuses to the full recognition of legal status. Article 6 further decrees that ‘[e]veryone has the right to recognition everywhere as a person before the law’. The declaration contains no expressed limit as to the meaning of ‘everywhere’ and, therefore, is subject to interpretation. I propose that ‘everywhere’ must be logically understood to include even inside a pregnant woman’s womb.

International instruments

  • International Covenant on Civil and Political Rights (1966)

Being one of the binding international instruments, the International Covenant on Civil and Political Rights (ICCPR) has foreshadowed the protection of unborn children from State punishment. Paragraph 5 of art 6 firmly reiterates that ‘[s]entence of death shall not be imposed … on pregnant women’. This provision unambiguously expresses the shared understanding that an unborn child is a separate human being who cannot be arbitrarily punished for crimes committed by another separate human person (mother/parent). The protection granted therein makes no distinction pertaining the viability of a child outside its mother’s womb and, thus, ‘every pregnant woman’ is construed in its ordinary sense, irrespective of the child’s gestational age or other status.

  • Convention on the Rights of the Child (1989) (UN Doc A/Res/44/25 (1989))

The Convention on the Rights of the Child (CRC) is the binding international instrument embodying the legal protection of human children. The definition of children refers to human beings below the age of 18, and does not preclude foetuses or unborn babies. This definition is qualified by art 1, read with the preamble and art 24(2) of the CRC. These parts seek to recognise foetuses as part of a human family capable of legal protection, as proclaimed in the Declaration of the Rights of the Child. They place an obligation on the Member State to take appropriate measures to ensure prenatal care, thereby realising human life capable of protection ensues prior birth. The African Charter on Rights and Welfare of the Child imitates the CRC in this regard. Other international and regional instruments in lieu the child conforms with this standard definition.

Its preambular provides children with ‘special safeguards and care, including appropriate legal protection, before as well as after birth’. To achieve this goal, art 2 provides a protective edge against discrimination on grounds of ‘disability, birth or other status’. Suffice to outline that this demonstrates the eagerness of the law to attach legal recognition to unborn children. However, South African courts have opted to adopt a more stringent approach in determining the legal recognition of the unborn child’s status.

Courts’ reluctance

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) at 578 where the court deemed it necessary to give a verdict that foetal 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 (and not substantial) issue as I am of the view that the assertions made by our courts (ie, the assertion 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 recognise human life prior to birth. This duty is substantiated by the internationally (and domestically) expressed realisation that children need legal protection even before birth and is in no way permissible in terms of the international instruments referred to. It simply demonstrates the common understanding that unborn children are human beings capable of legal protection and recognition.

Conclusion

For the most part, I have argued that scientific developments have shown us that unborn children are human beings who individually live and exist inside their mother’s womb. For this reason, I argued, international instruments (such as the ICCPR and the CRC) and other unmentioned instruments do extend legal protection to unborn children. This extended protection relating to a prenatal state recognises the status of unborn children as human beings, without discrimination of birth or any other status.

Our courts have been merely wrestling with the technicality of the conceptualisation of a foetus, resulting in an unnecessary and unsubstantial distinction being made between viable and non-viable foetuses. As such, legislative measures such as the enactment of ‘The Recognition of Unborn Children as Human Beings Act’ must be adopted in order to give effect to the literal and purposive aim of the aforementioned instruments, and to make scientific advancements beneficial to the family of human beings.

Luphumlo Mahlinza is a final-year law student at the University of Fort Hare in East London. 

This article was first published in De Rebus in 2019 (Sept) DR 34.