nasciturus fiction

Literal translation

the fiction concerning one who is to be born

Legal meaning

The nasciturus fiction is the rule that an unborn child is deemed already born whenever this benefits the child, provided the child is later born alive. In South African law it is used chiefly in succession and benefits cases, and has also been considered in delictual contexts involving prenatal harm. The fiction does not treat the foetus as a legal person generally; it operates only for specific legal advantages and subject to its conditions.

Examples

• South African courts have applied the nasciturus fiction to allow an unborn child to inherit, subject to later live birth.
• In Road Accident Fund v Mtati, the court discussed claims arising from prenatal injuries with reference to the nasciturus fiction.
• The nasciturus fiction is commonly invoked in the law of succession where a beneficiary was conceived but not yet born when the estate devolved.

• 🇿🇦 Road Accident Fund v Mxolisi Richard Mtati obo Zukhanye Mtati
  Supreme Court of Appeal of South Africa· 2005-06-01· 332/04

  action for injuries sustained while a foetus, Hiemstra J applied the so-called nasciturus fiction derived from Roman law to the effect that an unborn child, if subsequently born alive

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