RRLLB81 Assignment 2 (QUALITY ANSWERS) Semester 2 2025 - The Nasciturus fiction and wrongful life

This document contains workings, explanations and solutions to the RRLLB81 Assignment 2 (QUALITY ANSWERS) Semester 2 2025. For assistance whats-app us on 0.6.8..8.1.2..0.9.3.4... The Nasciturus fiction and wrongful life The unborn child can be considered to be born in order to benefit for certain legal purposes. This principle is called the nasciturus fiction. For instance, if a child that is still to be born suffers injuries before birth, and is subsequently delivered alive, the nasciturus fiction can be applied to benefit the child by claiming delictual damages. This implies that the child attains 56 rights until born alive. This fiction, perhaps, arguably guarantees the right to life of a foetus. On the other hand, the principle of wrongful life refers to a legal claim made on behalf of a child born with severe disabilities, alleging that the child's birth, and the subsequent suffering, was caused by a healthcare provider's negligence. Negligence in this regard could mean that the healthcare professional has failed to properly diagnose and thereafter inform the parents about potential birth defects, thus depriving the parents of the choice to terminate the pregnancy or take other preventative measures. If a child is born alive, the parents may institute two claims, one against the person who caused the foetus injuries and the healthcare professional who failed to diagnose potential birth defects. This appears to be legally unfair. Provide your understanding about these legal principles and their contradiction in cases of prematernal injuries. You may also consider whether the right to life applies in such cases. Cases Pinchin and Another NO v Santam Insurance Co Ltd 1963 (2) SA 254 (W) Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA) Christian Lawyers Association v Minister of Health and Others (Reproductive Health Alliance as Amicus Curiae) 2005 (1) SA 509 (T) Books Kruger H (ed), The Law of Persons in South Africa (3rd edn, Oxford University press 2024) Heaton J, The South African Law of Persons (6th edn, LexisNexis 2021) Legislation Constitution of Soth Africa, 1996 Journal Articles Chürr C, ‘Wrongful Life Claims Under South African Law: An Overview of the Legal Framework’ (2015) 36(3) Obiter 745 Mukheibir A, ‘The Nasciturus Fiction and Delictual Claims: RAF v M obo M [2005] 3 All SA 340 (SCA)’ (2006) 27 Obiter 188