Personhood: Proving the Significance of the Born-Alive Rule with Reference to Medical Knowledge of Foetal Viability

• Jurisdiction: South Africa
• Citation: (2013) 24 Stell LR 146
• Author: Camilla Pickles
• Published date: 16 August 2019
• Date: 16 August 2019
• Pages: 146-164

146

PERSONHOOD: PROVING THE SIGNIFICANCE

OF THE BORN-ALIVE RULE WITH REFERENCE

TO MEDICAL KNOWLEDGE OF FOETAL

VIABILITY

Camilla Pickles

LLB LLM

Doctoral student and academic assistant for the Centre for Child Law, Department of

Private Law, University of Pretoria*

1 Introduction

In South Africa , the common law born-al ive rule provides that legal

subjectivity will only vest once a p erson is born alive.1 The present article has

been prompted by a recent publication, by Pil lay, that questions the relevance

of the common law born-alive ru le in the face of modern- day advances in

medical te chnologies.2 P illay argues that, i n view of advances in medical

technology and science, the evidentiar y difculties that gave rise to the

formulation of the born-alive r ule are now eliminated.3 This a rgument rests on

the fact that medical tech nology gives direct access t o the developing foetus

and its environment, a nd also enables medical practit ioners to determi ne the

nature and extent of any ha rm that may have been caused t o a foetus prior

to birt h.4 On these grounds , Pillay then calls for the born -alive rule to be

substit uted by a denition of perso nhood which relies on medic al science and

technology (rather than legal factor s) in order to include an unbor n but viable

foetus .5 Foetal viability is dened by Pillay as the point in foetal development

at which the foetus can sur vive independently of the pregnant woman, and the

author accepts that th is occurs at 24 weeks’ gestation.6

The author then goes on to arg ue that introduci ng personhood at the

point of viability will assist i n addressing the u nequal power relationship

shared by the foetus and pr egnant woman in the context of ter mination

of preg nanci es.7 Pillay argues th at the courts wi ll also be in a position to

adopt a more balanced approach when cal led on to resolve “maternal-foetal

* This art icle is based on, and is an ad aption of, an unpublish ed paper C Pickles Provin g the Significanc e

of the Born-Alive R ule with Reference to the Conte xtual Realities of Foetal Viabil ity (2012) present ed

at a conference of t he Society of Law Teachers of Souther n Africa at the Nelson Ma ndela Metropolitan

Univer sity, 07-2012

1 T Boezaar t Law of Persons 5 ed (2010) 11

2 R Pillay “The Be ginning of Hu man Personhoo d: Is South Afr ican Law Outdat ed?” (2010) 21 Stell LR 230

3 232

4 232

5 236

6 236 n 56 Pillay relie s on K Moodley “Feticide a nd Late Termination of P regnancy: Five Levels of Et hical

Conflic t” (2008) 18 O & G Forum 93 Also see J de Rouba ix & A van Niekerk “Sepa ration-surv ivability

– The Elusive Moral C ut-off Point?” (2006) 96 SAMJ 623, who sh are Pillay’s views

7 Pill ay (2010) S tell LR 236

(2013) 24 Stell LR 146

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conicts”.8 Fur ther, laws can be enacted to proscr ibe murder of, and assault

on, the foetus, and w rongful-death clai ms based on negligently causing a

stillbirth ca n also be facilitated.9

In order to extend person hood to a viable foetus, the conc ept of foetal

viability needs to be pr operly understood. The p resent article exami nes the

concept of foetal viability with in the framework of moder n-day medical

knowledge of foetal development.10 The aim is to indicate that, de spite advances

in medicine, the ter m “foetal viability ” used in law introduce s a false sense

of foetal security.11 It will be demonstr ated that the ter m “foetal viability” i s

not an exact point in foetal development. In fac t, foetal viability is subject to

a number of clinical factors, some not d irectly linked to foet al development

but rather to the position adopted by a pa rticular societ y. Further problems

are encountered when it comes t o accurately deter mining the gest ational age

or even weight of developing foetuses, making the exact mome nt of foetal

viability more an issue of clinical estimat es that can be veried only upon

birth.

2 Live birth in law

The requirement of live bir th features in crim inal law for purposes of proving

murder12 and in the law of persons as t he moment when legal subjectivity

originates.13 The common law bor n-alive rule was developed as a result of a

lack of advanced medical technology a nd because of a primitive understanding

of the female body during preg nancy.14 During th ese less tech nologically

advanced eras, preg nancies could not be monitored with a ny certainty.15 Prior

8 Pill ay (2010) Stell LR 236 See R Rot h Making Women Pay: The Hidden Cost o f Fetal Rights (2001) 6

Roth argues t hat it is best to avoid the ph rase “mater nal-foetal conf lict”, since it on ly focuses attent ion on

women’s behaviour as the so urce of risk to foetal h ealth and away from pre gnant women’s environmen ts

and the respo nsibilities t hat other ind ividuals or in stitution s might have toward s ensuri ng healthy

pregnancie s and healthy preg nancy outcomes Further, with refer ence to the cur rent legal position in

South Afri ca, in principle, there a re no “maternal-foetal co nflicts” to be resolved Thi s is the position

because a preg nant woman is one single legal s ubject and she cannot be in co nflict with hersel f or her

own interes ts It is only once a pregnant wo man and foetus are se parated that the c onditions for conf lict

are encount ered, since the two sepa rate legal subjects (held i n one pregnant body) may have diverg ing

interests a t some point dur ing the preg nancy See S v Mshumpa 2008 1 SACR 126 (E) 151I, where

Froneman J expre ssed this as the “u nique together ness” experienced d uring a pregna ncy, with the result

that an assau lt on a pregnant woman i s an experience of bot h the foetus and wom an in their togeth erness

9 Pill ay (2010) S tell LR 236

10 Unfortu nately, Pillay did not conside r this aspect in Pi llay (2010) Stell LR 230, despite her asser tion that

advances in m edical science just ify the extension of p ersonhood to a via ble foetus

11 G Cohen & S Sayeed “ Fetal Pain, Abort ion, Viability and th e Constitution” (2011) 36 JLME 235 237

12 C Snyman Crim inal Law 5 ed (2008) 448; J Burch ell & J Milton Principl es of Criminal Law 3 ed (2007)

671

13 Boezaar t Law of Persons 11

14 Pil lay (2010) Stell LR 231

15 231 Also see A Oakley The Captu red Womb: A History of the Medical Care of Wome n (1984) 11-12

According to Oa kley, in the eighteenth an d nineteenth centu ries, antenatal ca re did not exist Pregnant

women and health care providers did not co nsider routine medic al supervision nece ssary There were no

clinics or hospi tal depart ments available to pr egnant women T he general rule wa s that pregnan cy did not

constitut e a medical phenomenon ; in fact, there was no p rofessional body claim ing expert knowle dge on

the treatm ent of pregnant women

PERSONHOOD 147

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