, LME3701
ASSIGNMENT 2 SEMESTER 2
2026
DUE SEPTEMBER 2026
A) Historical research approach………………………………………………………………………………………PAGE 3
B) Comparative research approach…………………………………………………………………………………PAGE 15
,THE LEGAL STATUS OF THE UNBORN CHILD IN SOUTH AFRICAN LAW: A HISTORICAL ANALYSIS OF
PERSONHOOD, CONSTITUTIONAL INTERPRETATION, AND THE CASE FOR COMMON LAW
DEVELOPMENT
1. Introduction
The question of whether the unborn child should be recognised as a legal subject with
constitutional protection has emerged as one of the most contested and philosophically complex
issues in South African law. This debate sits at the intersection of fundamental constitutional values,
including the right to life, the right to bodily integrity, the right to dignity, and the right to
reproductive autonomy. The controversy was brought into sharp focus by the submission of a
faith-based association to a human rights organisation, which contended that the Constitutional
right to life in section 11 of the Constitution of the Republic of South Africa, 1996, which provides
that "everyone" has the right to life, should be interpreted to include the unborn child. The
submission expressed particular dissatisfaction with the decision in S v Mshumpa and Another 2008
(1) SACR 126 (E), wherein the Eastern Cape High Court held that the common-law crime of murder
does not extend to the killing of a foetus, and that it is the responsibility of the legislature, rather
than the judiciary, to develop the law in this regard.¹
The Mshumpa case involved the tragic killing of a foetus in the 38th week of gestation following an
attack on the pregnant mother. The court was confronted with the question of whether the
accused could be charged with murder for the death of the unborn child. The court ultimately held
that the common-law definition of murder, which requires the killing of a "person" who has been
"born alive," does not encompass a foetus. Froneman J, while acknowledging the moral gravity of
the conduct, stated that it was not for the court to extend the definition of murder to include the
unborn, but rather that such a development, if it were to occur, would need to come from the
legislature.²
This decision has generated significant scholarly debate and has been the subject of considerable
criticism from various quarters, including faith-based communities and some legal academics who
argue that the common law should be developed to reflect the changing legal convictions of the
community. The submission by the faith-based association represents a broader societal tension
between the protection of prenatal life and the constitutional rights of pregnant women. The
association's argument that the word "everyone" in section 11 of the Constitution should be
interpreted to include the unborn child raises profound questions about the scope of constitutional
rights, the methodology of constitutional interpretation, and the proper role of the courts in
developing the common law.
The research problem that this study seeks to investigate is whether South African law, through its
historical development and current constitutional framework, recognises or ought to recognise the
unborn child as a legal person with a right to life, and whether the common law should be
developed to criminalise the killing of a foetus. This study adopts a historical research approach,
examining the development of South African law on this issue from the Roman-Dutch law
foundations to the present day, with particular focus on the Constitution, relevant legislation, case
law, Law Reform Commission reports, and scholarly writings. The study does not seek to analyse
the legality of abortion per se, but rather addresses the broader argument pertaining to whether
an unborn child is or should be acknowledged as a person in South African law.
, 2. Problem Statement
South African law currently does not recognise the unborn child as a legal person for the purposes
of the common-law crime of murder. In S v Mshumpa, the Eastern Cape High Court confirmed that
the crime of murder requires the killing of a "person" who has been born alive, and that a foetus,
regardless of its stage of development, does not qualify as such a person.³ The court further held
that the development of the common law to extend the definition of murder to include the foetus
would be a matter for the legislature, not the judiciary.
However, the Constitutional Court in Christian Lawyers Association of South Africa v Minister of
Health 1998 (4) SA 1113 (T) held that the unborn child is not a bearer of constitutional rights under
the Constitution.⁴ This decision, while binding, has not resolved the academic and societal debate
surrounding the legal status of the unborn child. The issue is further complicated by the existence
of the nasciturus fiction in the law of delict and succession, which provides that an unborn child is
deemed to have been born at the time of conception whenever it is to the child's advantage.⁵ This
legal fiction creates a tension between the treatment of the unborn in private law and the
treatment of the unborn in criminal law.
The problem that this research seeks to address is twofold. First, there is a lack of clarity regarding
the historical and jurisprudential foundations of the current legal position that the unborn child is
not a legal person. The historical development of this position, from Roman-Dutch law through to
the present constitutional dispensation, has not been comprehensively analysed in a single study.
Second, there is an ongoing debate about whether the common law should be developed in terms
of section 39(2) of the Constitution to reflect the legal convictions of the community and to
criminalise the killing of a foetus. The submission by the faith-based association reflects a
significant segment of societal opinion that the current law is inadequate and that the legal
convictions of the community have changed such that the killing of a foetus should be a crime.
This research problem is further complicated by the constitutional rights at stake. On the one hand,
there is the right to life enshrined in section 11 of the Constitution, which the faith-based
association argues should protect the unborn. On the other hand, there are the rights to bodily
integrity, dignity, and privacy of pregnant women, which would be impacted by any extension of
criminal liability to include the foetus. The tension between these competing constitutional rights
requires careful analysis and balancing, particularly in light of the Constitutional Court's approach
to the interpretation of fundamental rights.
Furthermore, the South African Law Reform Commission (SALRC) has previously considered the
issue of foetal rights in its investigations into abortion and the law of persons.⁶ The findings of the
SALRC, along with scholarly writings on the subject, provide a foundation for understanding the
legal convictions of the community and the policy considerations that should inform any
development of the law.
The central problem that this research proposal seeks to address, therefore, is to determine
whether South African law should recognise the unborn child as a legal person with a right to life,
and whether the common law should be developed to criminalise the killing of a foetus, viewed
through the lens of historical legal development and the current constitutional framework.
ASSIGNMENT 2 SEMESTER 2
2026
DUE SEPTEMBER 2026
A) Historical research approach………………………………………………………………………………………PAGE 3
B) Comparative research approach…………………………………………………………………………………PAGE 15
,THE LEGAL STATUS OF THE UNBORN CHILD IN SOUTH AFRICAN LAW: A HISTORICAL ANALYSIS OF
PERSONHOOD, CONSTITUTIONAL INTERPRETATION, AND THE CASE FOR COMMON LAW
DEVELOPMENT
1. Introduction
The question of whether the unborn child should be recognised as a legal subject with
constitutional protection has emerged as one of the most contested and philosophically complex
issues in South African law. This debate sits at the intersection of fundamental constitutional values,
including the right to life, the right to bodily integrity, the right to dignity, and the right to
reproductive autonomy. The controversy was brought into sharp focus by the submission of a
faith-based association to a human rights organisation, which contended that the Constitutional
right to life in section 11 of the Constitution of the Republic of South Africa, 1996, which provides
that "everyone" has the right to life, should be interpreted to include the unborn child. The
submission expressed particular dissatisfaction with the decision in S v Mshumpa and Another 2008
(1) SACR 126 (E), wherein the Eastern Cape High Court held that the common-law crime of murder
does not extend to the killing of a foetus, and that it is the responsibility of the legislature, rather
than the judiciary, to develop the law in this regard.¹
The Mshumpa case involved the tragic killing of a foetus in the 38th week of gestation following an
attack on the pregnant mother. The court was confronted with the question of whether the
accused could be charged with murder for the death of the unborn child. The court ultimately held
that the common-law definition of murder, which requires the killing of a "person" who has been
"born alive," does not encompass a foetus. Froneman J, while acknowledging the moral gravity of
the conduct, stated that it was not for the court to extend the definition of murder to include the
unborn, but rather that such a development, if it were to occur, would need to come from the
legislature.²
This decision has generated significant scholarly debate and has been the subject of considerable
criticism from various quarters, including faith-based communities and some legal academics who
argue that the common law should be developed to reflect the changing legal convictions of the
community. The submission by the faith-based association represents a broader societal tension
between the protection of prenatal life and the constitutional rights of pregnant women. The
association's argument that the word "everyone" in section 11 of the Constitution should be
interpreted to include the unborn child raises profound questions about the scope of constitutional
rights, the methodology of constitutional interpretation, and the proper role of the courts in
developing the common law.
The research problem that this study seeks to investigate is whether South African law, through its
historical development and current constitutional framework, recognises or ought to recognise the
unborn child as a legal person with a right to life, and whether the common law should be
developed to criminalise the killing of a foetus. This study adopts a historical research approach,
examining the development of South African law on this issue from the Roman-Dutch law
foundations to the present day, with particular focus on the Constitution, relevant legislation, case
law, Law Reform Commission reports, and scholarly writings. The study does not seek to analyse
the legality of abortion per se, but rather addresses the broader argument pertaining to whether
an unborn child is or should be acknowledged as a person in South African law.
, 2. Problem Statement
South African law currently does not recognise the unborn child as a legal person for the purposes
of the common-law crime of murder. In S v Mshumpa, the Eastern Cape High Court confirmed that
the crime of murder requires the killing of a "person" who has been born alive, and that a foetus,
regardless of its stage of development, does not qualify as such a person.³ The court further held
that the development of the common law to extend the definition of murder to include the foetus
would be a matter for the legislature, not the judiciary.
However, the Constitutional Court in Christian Lawyers Association of South Africa v Minister of
Health 1998 (4) SA 1113 (T) held that the unborn child is not a bearer of constitutional rights under
the Constitution.⁴ This decision, while binding, has not resolved the academic and societal debate
surrounding the legal status of the unborn child. The issue is further complicated by the existence
of the nasciturus fiction in the law of delict and succession, which provides that an unborn child is
deemed to have been born at the time of conception whenever it is to the child's advantage.⁵ This
legal fiction creates a tension between the treatment of the unborn in private law and the
treatment of the unborn in criminal law.
The problem that this research seeks to address is twofold. First, there is a lack of clarity regarding
the historical and jurisprudential foundations of the current legal position that the unborn child is
not a legal person. The historical development of this position, from Roman-Dutch law through to
the present constitutional dispensation, has not been comprehensively analysed in a single study.
Second, there is an ongoing debate about whether the common law should be developed in terms
of section 39(2) of the Constitution to reflect the legal convictions of the community and to
criminalise the killing of a foetus. The submission by the faith-based association reflects a
significant segment of societal opinion that the current law is inadequate and that the legal
convictions of the community have changed such that the killing of a foetus should be a crime.
This research problem is further complicated by the constitutional rights at stake. On the one hand,
there is the right to life enshrined in section 11 of the Constitution, which the faith-based
association argues should protect the unborn. On the other hand, there are the rights to bodily
integrity, dignity, and privacy of pregnant women, which would be impacted by any extension of
criminal liability to include the foetus. The tension between these competing constitutional rights
requires careful analysis and balancing, particularly in light of the Constitutional Court's approach
to the interpretation of fundamental rights.
Furthermore, the South African Law Reform Commission (SALRC) has previously considered the
issue of foetal rights in its investigations into abortion and the law of persons.⁶ The findings of the
SALRC, along with scholarly writings on the subject, provide a foundation for understanding the
legal convictions of the community and the policy considerations that should inform any
development of the law.
The central problem that this research proposal seeks to address, therefore, is to determine
whether South African law should recognise the unborn child as a legal person with a right to life,
and whether the common law should be developed to criminalise the killing of a foetus, viewed
through the lens of historical legal development and the current constitutional framework.
