The Introduction of a Statutory Crime to Address Third-Party Foetal Violence

Abstract

S v Mshumpa 2008 1 SACR 126 (E) dealt with the controversial issue of violence by a third party aimed at terminating prenatal life. The decision of the Eastern Cape Division emphasized that, until live birth, a foetus is not a legal subject with constitutional rights. As a result of this, a foetus cannot be the victim of criminal conduct. The court refused to develop the common law crime of murder to include a foetus and referred the problem to the legislature to address.

Concerns raised in the article and highlighted by Mshumpa, relate to the most effective method of law reform and to the implications of law reform for established legal principles concerning legal subjectivity, the vesting of constitutional rights, and female reproductive rights. In order to avoid these issues, the introduction of a statutory crime is suggested as the preferred method for law reform.

Keywords: crime, foetal violence