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A pressing question in law is whether unborn children have legal rights or not. This question often comes about in delictual cases where an unborn child has been harmed and is subsequently born with complications resulting from the harm. The issue that arises is then whether the harm that the child endured while still a foetus is a valid ground to claim for damages.

The general approach to this is that a person become a legal person and has legal capacity only at birth, meaning that a foetus or unborn child therefore does not have any legal subjectivity, status or capacity. Although this is the general approach, there exists a legal principle known as the nasciturus fiction.

The nasciturus fiction is a legal principle whereby the interests of a foetus are kept open if the child is born alive. The interests of an unborn child are protected in instances where the foetus is entitled to a testamentary inheritance, or where the foetus has a right to maintenance in divorce proceedings. There are many other circumstances in which an unborn child’s interests must be protected, but the point of explaining these is merely to show that the principle of nasciturus fiction only applies in instances where it is beneficial to the unborn child.

Since a natural person only assumes a legal persona from the point of birth, the nasciturus fiction keeps the interest of the unborn potential legal subject in abeyance until all the requirements for the fictitious advancement of legal subjectivity are met. Apart from the abovementioned requirements, it is also important to note that the so-called benefit must have only accrued to the nasciturus after the date of conception.

The nasciturus fiction is used in various spheres of private law, but is prominent is the law of delict.

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