Law of Persons 2011

Lecture 5: WL/WB & CTOP

Agenda
Protecting the interests of unborn children: WB / WL actions Is there a role for the fiction in termination-ofpregnancy matters? Choice on Termination of Pregnancy Act. Does termination of pregnancy form part of the law of persons? Issues: If the fetus is regarded as a person for purposes of succession, maintenance, delict why not for the most important purpose of all? Constitutional protection of foetal life in other jurisdictions? Amillia Sonya Taylor (21 weeks and 6 days) = Joshua Armas (21 weeks)?

Reflection on the need for the nasciturus fiction in delict matters (June 2008 Persons exam):
You are an attorney. Nombulelo Mkhize comes to you for advice. Six months previously, Nombulelo gave birth to Thandi. Thandi was born with congenital syphilis. Nombulelo advises that, before Thandi was conceived, she received a blood transfusion from Fort Fordyce Hospital in the Eastern Cape and, as a result, contracted syphilis. There is no doubt that the botched blood transfusion was the proximate cause of the syphilis she contracted and, in turn, the congenital syphilis that Thandi contracted. She now wants to sue the hospital for the harm caused to her and her child. Advise Nombulelo fully, with reference to case law.

Is there any role for the nasciturus fiction in wrongful life actions? Friedman v Glicksman Stewart v Botha Facts
Causes of action (WB / WL) Exception taken? Findings

Role of nasciturus fiction?

Status of the child at the time of the negligent act 1141B of Friedman

Interesting issues that arise?

Outline of the Act

Repealed the Abortion and Sterilisation Act 2 1975 Divides pregnancy into 3 trimesters: 1-12 weeks (on demand) 13-20 weeks (restricted to 4 instances) 20th week onwards (restricted to 3 instances)

What are these instances?

13-20 weeks:
1. Risk of injury to the womans physical or mental health; 2. Substantial risk that the foetus will suffer from a severe physical or mental abnormality; 3. Pregnancy from rape or incest; 4. Continued pregnancy would significantly affect the social or economic circumstances of the woman.

What are these instances? (cont) 20th week onwards:

1. Would endanger the womans life; 2. Would result in a severe malformation of the fetus; 3. Would pose a risk of injury to the fetus.

When does legal personality begin in the context of the Constitution & Choice Act?

Before the Constitution: CLSA v Rall 1981 After the Constitution: CLSA v Minister of Health 1998

Information directly relevant to question Constitution

S11 S12(2)(a)

Preamble to the CTOP Act

Termination is not a form of contraception or birth control

Other jurisdictions?
German grundgesetz USA & Canada

CLSA v Minister of Health

Legal question Findings: everyone = every person No qualification or internal limitation in s12(2) Intention would have been made unequivocally = s11 & s28 Anomalous consequences

Is pre-natal life worthy of protection?

Heaton (and Sinclair) Dworkin (Lifes Dominion)

State and community interests Intrinsic value of life

Meyerson (SALJ 1999 (116) 50)

Value of dignity

International instruments re: use of embryos and foetuses in scientific research

Factual scenario
You are an attorney. Mary Watkins and her mother (Sylvia) approach you for advice. Mary, a 17 year old student at Rhodes University, is very overweight due to a thyroid problem and explains to you that she has irregular menses (ie. she does not have regular periods). She advises that she was raped at a party a few months ago where she had been given a drink spiked with a drug. She has just discovered that she is 22 weeks pregnant. She wishes to terminate the pregnancy. Her mother, on the other hand, wants her to keep the baby and has threatened to withhold parental consent to the termination. Advice Mary and Sylvia fully.