Persons 5'.ppt

7/28/2019 'Persons 5'.ppt

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Law of Persons 2011

Lecture 5: WL/WB & CTOP


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Agenda

Protecting the interests of unborn children: WB / WL actions Is there a role for the fiction in termination-of-

pregnancy matters? Choice on Termination of Pregnancy Act.

Does termination of pregnancy form part of thelaw of persons?

Issues: If the fetus is regarded as a person for purposes

of succession, maintenance, delict why not forthe most important purpose of all?

Constitutional protection of foetal life in otherjurisdictions?

Amillia Sonya Taylor (21 weeks and 6 days) =Joshua Armas (21 weeks)?


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Reflection on the need for the nasciturus fiction

in delict matters (June 2008 Persons exam):

You are an attorney. Nombulelo Mkhize comes toyou for advice. Six months previously,Nombulelo gave birth to Thandi. Thandi was bornwith congenital syphilis. Nombulelo advises that,before Thandi was conceived, she received a

blood transfusion from Fort Fordyce Hospital inthe Eastern Cape and, as a result, contractedsyphilis. There is no doubt that the botchedblood transfusion was the proximate cause of

the syphilis she contracted and, in turn, thecongenital syphilis that Thandi contracted. Shenow wants to sue the hospital for the harmcaused to her and her child.

Advise Nombulelo fully, with reference to caselaw.


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Is there any role for the nasci turusfiction in

wrongful life actions?

Friedm an v Gl ick sman Stewart v Bo tha

Facts

Causes of action (WB / WL) Exception taken?

Findings

Role ofnasci turusfiction?

Status of the child at the time of the negligent act

1141B ofFriedman

Interesting issues that arise?


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Outline of the Act

Repealed the Abortion and Sterilisation Act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)


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What are these instances?

13-20 weeks:

1. Risk of injury to the womans physical or

mental health;

2. Substantial risk that the foetus will suffer from

a severe physical or mental abnormality;

3. Pregnancy from rape or incest;4. Continued pregnancy would significantly affect

the social or economic circumstances of the

woman.


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What are these instances? (cont)

20th week onwards:

1. Would endanger the womans life;

2. Would result in a severe malformation of thefetus;

3. Would pose a risk of injury to the fetus.


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When does legal personality begin in the

context of the Constitution & Choice Act?

Before the Constitution:

CLSA v Rall1981

After the Constitution:

CLSA v Minister of Health 1998


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Information directly relevant to

question

Constitution

S11

S12(2)(a)

Preamble to the CTOP Act

Termination is not a form of contraception or

birth control

Other jurisdictions?

German grundgesetz

USA & Canada


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CLSA v Minister of Health

Legalquestion

Findings:

everyone = every person

No qualification or internal limitation ins12(2)

Intention would have been madeunequivocally = s11 & s28

Anomalous consequences


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Is pre-natal life worthy of protection?

Heaton (and Sinclair) Dworkin (Lifes Dominion)

State and community interests

Intrinsic value of life Meyerson (SALJ1999 (116) 50)

Value of dignity

International instruments re: use ofembryos and foetuses in scientific

research


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Factual scenario

You are an attorney. Mary Watkins and hermother (Sylvia) approach you for advice. Mary,a 17 year old student at Rhodes University, isvery overweight due to a thyroid problem andexplains to you that she has irregularmenses(ie. she does not have regular periods). Sheadvises that she was raped at a party a fewmonths ago where she had been given a drinkspiked with a drug. She has just discovered

that she is 22 weeks pregnant. She wishes toterminate the pregnancy. Her mother, on theother hand, wants her to keep the baby andhas threatened to withhold parental consent to

the termination. Advice Mary and Sylvia fully.

Documents

Persons 5'.ppt