An argument for foetal protection within a framework of legal abortion in South Africa

Abstract

Termination of pregnancy (abortion) and foetal protection remain a challenging topic in South Africa where abortion is legalised and largely decriminalised. As a general rule, an unborn (nasciturus) does not have legal status and a human right to life, until born alive. A meaningful engagement with South African law highlights that the life of an unborn may be worthy of protection in some abortion cases. This paper proffers an argument favouring increased foetal protection that goes beyond the usual pro-life/pro-choice perspectives. It proposes, as an exception to the general rule, the application of the nasciturus maxim as a "rule" to conditionally advance legal subjectivity to an unborn and thereby afford it rights. It argues that such application may be reinforced when combined with a "legal" foetal viability implicit in the abortion law. Such proposal does not require any amendment to the existing law.