Professional Documents
Culture Documents
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
Repealed the Abortion and Sterilisation Act 2 1975 Divides pregnancy into 3 trimesters: 1-12 weeks (on demand) 13-20 weeks (restricted to 4 instances) 20th week onwards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)
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
Other jurisdictions?
German grundgesetz USA & Canada
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.