Citation

Lupton ML. Med. Law 1994; 13(1-2): 79-94.

Affiliation

School of Law, University of Natal, Pietermaritzburg, South Africa.

Copyright

(Copyright © 1994, International Centre of Medicine and Law)

DOI

unavailable

PMID

8065252

Abstract

It is scientifically indisputable that excessive use of alcohol or drugs during pregnancy causes defects in the children who are subsequently born to the abusing mothers. In the United States any legislative intervention by a state during the pregnancy would affect the rights of both the mother and the foetus. In order to remain within the bounds of constitutionality any maternal health legislation would have to strike a clear balance between the mother's rights to reproductive and familial privacy and bodily integrity guaranteed by the Fourteenth Amendment and the state's right to protect the foetus. This balance is currently achieved in terms of the framework set out by the Supreme Court in Roe v Wade 410 US 113 (1973). Although South African legislation cannot as yet be tested for its constitutionality the basic problem of balancing the rights of the mother, the foetus and the state remain the same. South Africa enjoys an advantage which the United States of America does not, viz the common-law remedies presented by the Aquilian action and the actio injuriarum. Only a person can be the bearer of rights and can thus invoke an action to protect those rights. It is thus necessary to determine whether the nasciturus fiction as enunciated in D 1.5.7 would enable a foetus (via a curator ad litem) to enforce rights against its mother. It is submitted that an extension of certain principles in the decisions of our Supreme Court in Christian League of Southern Africa v Rall 1981 (2) SA 821 (O), Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A) and Clark v Hurst NO 1992 (4) SA 630 (D) coupled to the nasciturus fiction are indicative of the fact that a foetus may enjoy protection against drug abuse by its mother prior to its birth.

Language: en