A client very often approaches an attorney in a divorce and says that his wife is pregnant and he wants to divorce her. It is equally often that a pregnant client approaches a divorce attorney to institute an action against her husband.
In such a case, when drafting the divorce summons the attorney would approach this by referring to the child as “not born yet”, but would ask for maintenance in the event of the child being born alive. The attorney would also in the summons ask for the usual rights of contact in the event of the child being born alive.
Once the child is born alive, the condition is fulfilled. However if the child is not born alive due to a medical problem, the condition is not fulfilled, and the wife will have no claim for maintenance in respect of that child.
Our law definitely does recognise that the unborn child has rights. This is in accordance with the “nasciturus fiction” (the fiction of the unborn child). In the case of Pinchin v Santam Insurance Co Limited 1963 2 SA 254(W) an expectant mother was injured in a motor vehicle accident and the child was subsequently born with cerebral palsy. As a result of the brain damage the child would never have been able to care for himself. Santam, the statutory insurer of the other party’s car, admitted that the driver of the car was negligent. The court found that a child did have an action to recover damages for prenatal injuries. This case illustrates just how far the courts go to protect the rights of the unborn child.
In Shields v Shields 1946 CPD 242 the parents of an unborn child agreed that the father would not be responsible for the maintenance of the child after its birth. They wanted this agreement incorporated in a divorce order. The court held that a mother could not enter into such an agreement on behalf of her unborn child and that the agreement was contra bonos mores (against good customs). It was consequently not made an order of the court.
The courts go out of their way to make provision on a divorce order for the custody of the child after its birth, where a pregnant woman is party to divorce proceedings, to obviate the necessity for further legal proceedings when the child is born. The interests of the foetus are protected by the court, which are the upper guardians of the child as well as the unborn child.