The Nasciturus fiction and wrongful life
By
[Student Name / RLLLB81 Student]
(Student Number: 012345678)
Submitted in partial fulfilment of the requirements for the degree
Bachelor of Laws (LLB)
in the
Department of Criminal and Procedural Law
School of Law
University of South Africa (UNISA)
Supervisor: Prof. M. Monyakane
RLLLB81 – Assessment 2 / Final Portfolio
Due Date: September 2025
,Abstract
This study examines the legal doctrines of the nasciturns fiction and wrongful
life, exploring their historical origins, jurisprudential development, and contemporary
application in South African law. The nasciturns fiction, derived from Roman-Dutch
law, protects the interests of an unborn child by treating the fetus as already born for
certain legal purposes, particularly inheritance and succession rights. This principle
ensures that a child conceived but not yet born can acquire rights and benefits that
are crucial for equity and fairness within the legal system. Conversely, the doctrine of
wrongful life arises in cases where a child is born with severe congenital disabilities
due to alleged medical negligence or failures in prenatal care, raising profound
ethical, moral, and legal questions.
The research investigates the doctrinal foundations, statutory provisions, and
judicial interpretations of both doctrines, highlighting how South African courts
have navigated the tension between protecting pre-natal rights and addressing
claims of wrongful life. The study also explores comparative perspectives, examining
how other common law and civil law jurisdictions approach similar issues, thereby
providing a broader understanding of the principles and their application.
Using a doctrinal and comparative legal research methodology, the study
analyses legislation, case law, and scholarly commentary, with particular attention to
the evolving judicial reasoning and the policy implications of these doctrines. The
findings indicate that while the nasciturns fiction enjoys robust recognition, wrongful
life claims remain controversial, reflecting the complex interplay between legal rights,
ethical considerations, and societal values. The study ultimately underscores the
importance of balancing fetal protection, parental autonomy, and state or
professional accountability, providing guidance for courts, lawmakers, and
practitioners in resolving disputes at the intersection of law, medicine, and ethics.
Keywords
• Nasciturus Fiction
• Wrongful Life
, • Fetal Rights
• Succession Law
• Inheritance
• Medical Negligence
• Ethical Considerations
• South African Law
• Comparative Jurisprudence
• Legal Remedies
Abbreviations
Abbreviation Full Form
SA South Africa
LRC Law Reform Commission
CC Constitutional Court
HC High Court
S Section
NMLA National Medical Law Association
JD Judicial Decision
ILJ Industrial Law Journal
RC Roman-Dutch Common Law
United Nations International Children’s
UNICEF
Emergency Fund
By
[Student Name / RLLLB81 Student]
(Student Number: 012345678)
Submitted in partial fulfilment of the requirements for the degree
Bachelor of Laws (LLB)
in the
Department of Criminal and Procedural Law
School of Law
University of South Africa (UNISA)
Supervisor: Prof. M. Monyakane
RLLLB81 – Assessment 2 / Final Portfolio
Due Date: September 2025
,Abstract
This study examines the legal doctrines of the nasciturns fiction and wrongful
life, exploring their historical origins, jurisprudential development, and contemporary
application in South African law. The nasciturns fiction, derived from Roman-Dutch
law, protects the interests of an unborn child by treating the fetus as already born for
certain legal purposes, particularly inheritance and succession rights. This principle
ensures that a child conceived but not yet born can acquire rights and benefits that
are crucial for equity and fairness within the legal system. Conversely, the doctrine of
wrongful life arises in cases where a child is born with severe congenital disabilities
due to alleged medical negligence or failures in prenatal care, raising profound
ethical, moral, and legal questions.
The research investigates the doctrinal foundations, statutory provisions, and
judicial interpretations of both doctrines, highlighting how South African courts
have navigated the tension between protecting pre-natal rights and addressing
claims of wrongful life. The study also explores comparative perspectives, examining
how other common law and civil law jurisdictions approach similar issues, thereby
providing a broader understanding of the principles and their application.
Using a doctrinal and comparative legal research methodology, the study
analyses legislation, case law, and scholarly commentary, with particular attention to
the evolving judicial reasoning and the policy implications of these doctrines. The
findings indicate that while the nasciturns fiction enjoys robust recognition, wrongful
life claims remain controversial, reflecting the complex interplay between legal rights,
ethical considerations, and societal values. The study ultimately underscores the
importance of balancing fetal protection, parental autonomy, and state or
professional accountability, providing guidance for courts, lawmakers, and
practitioners in resolving disputes at the intersection of law, medicine, and ethics.
Keywords
• Nasciturus Fiction
• Wrongful Life
, • Fetal Rights
• Succession Law
• Inheritance
• Medical Negligence
• Ethical Considerations
• South African Law
• Comparative Jurisprudence
• Legal Remedies
Abbreviations
Abbreviation Full Form
SA South Africa
LRC Law Reform Commission
CC Constitutional Court
HC High Court
S Section
NMLA National Medical Law Association
JD Judicial Decision
ILJ Industrial Law Journal
RC Roman-Dutch Common Law
United Nations International Children’s
UNICEF
Emergency Fund
